Volume 193 — Pennsylvania State Reports

<p>Appeal, No. 294, Jan. T., 1898, by-plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1896,</p> <p>No. 470, on verdict for defendant.</p> <p>Assumpsit to recover an amount alleged to be due on a bank deposit. Before Biddle, P. J.</p> <p>Plaintiff’s statement was as follows :</p> <p>Jacob Myers, the plaintiff in the above case, claims to recover from the Southwestern National Bank, the defendant therein, the sum of $13,090, with interest thereon from May 22, 1894, which sum plaintiff avers is justly due and owing by the defendant to him by reason of the following: Defendant was and is engaged in the banking business, and plaintiff was a depositor with it. ' When the plaintiff’s account with defendant was opened it was then and there agreed by defendant that if plaintiff would deposit with it in consideration of its being allowed to use the moneys so deposited it would honor all checks and drafts drawn by him upon said account, and would safely keep the moneys so deposited by him, so that the same should be paid only to him or on his order. In accordance with the custom of banks, plaintiff thereupon signed his name in a signature book kept by defendant, that it might know his signature when checks or drafts drawn or purporting to be drawn by him upon said account were presented to the bank for payment. In accordance with the said agreement, plaintiff, on the dates set out in the following account, deposited with defendant the sums set out as cash in said account, and at the times in said account set forth defendant discounted for plaintiff the notes referred to therein, all of which were discpunted so as to permit plaintiff to draw there against, and have long since been paid in cash to defendant. The following is a copy of said account as taken from plaintiff’s deposit book with said defendant.</p> <p>* * x- * * * * X-</p> <p>Said account aggregates the sum of $622,040.63, all of which was received by defendant for plaintiff’s account under and in accordance with their agreement. During this period defendant paid to plaintiff, or upon his account, checks and notes drawn by him upon and payable out of said deposits and discounts, for various sums, aggregating $602,032.43. Defendant also wrongfully charged to plaintiff’s account, sometime between March 26,1891, and May 29,1891, the exact dates of which are not known to plaintiff, two forged checks or notes, purporting to have been drawn by plaintiff for $300 and $200 respectively. Defendant also wrongfully charged to plaintiff’s account ¡sometime between May 29,1891, and August 4,1891, the exact •dates of which are not known to the plaintiff, three forged .checks or notes purporting to have been drawn by plaintiff for $400, $400 and $100 respectively. Defendant also wrongfully charged to plaintiff’s account sometime between August 4,1891, and September 29,1891, the exact dates of which are not known to plaintiff, three forged checks or notes purporting to have been drawn by plaintiff, each for the sum of $500. Defendant also wrongfully charged to plaintiff’s account sometime between September 29, 1891, and December 24,1891, the exact dates of which are not known to plaintiff, two forged checks or notes purporting to have been drawn by plaintiff, for $500 and $1,275 respectively. Of this latter sum plaintiff believes $975 thereof was expended on plaintiff’s account, but without any knowledge whatever on his part of the manner in which it was obtained. Defendant also wrongfully charged to plaintiff’s account, sometime between December 24, 1891, and May 12,1892, the exact dates of which are not known to plaintiff, three forged checks or notes purporting to have been drawn by plaintiff for $200, $435 and $400 respectively. Of these sums plaintiff believes that $435 thereof was expended on plaintiff’s account, but without any knowledge whatever on his part of the manner in which it was obtained. Defendant also wrongfully charged to plaintiff’s account sometime between May 12, 1892, and September 8,1892, the exact dates of which are not known to plaintiff, three forged checks or notes purporting to have been drawn by plaintiff for $500, $1,250 and $550 respectively. Of these sums plaintiff believes that $600 thereof was expended on plaintiff’s account, but without any knowledge whatever on his part of the manner in which it was obtained. Defendant also wrongfully charged to plaintiff’s account sometime between September 8, 1892, and January 3, 1893, the exact dates of which are not known to plaintiff, three forged checks or notes purporting to have been drawn by plaintiff, for $500, $1,400 and $500 respectively. Of these sums plaintiff believes that $900 thereof was expended on plaintiff’s account, hut without any knowledge whatever on his part of the manner in which it was obtained. Defendant also wrongfully charged to plaintiff’s account sometime between January 13,1893, and February 28, 1893, the exact dates of which are not known to plaintiff, two forged checks or notes purporting to have been drawn by plaintiff for $540 and $1,500 respectively. Defendant also wrongfully charged to plaintiff’s account sometime between February 28, 1893, and July 14,1893, the exact dates of which are not known to plaintiff, two forged checks or notes purporting to have been drawn by plaintiff, for $500 and $1,500 respectively. Defendant also wrongfully charged to plaintiff’s account sometime between July 14, 1893, and October 2,1893, the exact date of which is not known to plaintiff, a forged check or note, purporting to have been drawn by 'plaintiff, for $500. Defendant also wrongfully charged to plaintiff’s account sometime between October 2, 1893, and November 24, 1893, the exact date of which is not known to plaintiff, a forged check or note, purporting to have been drawn by plaintiff, for $500. Defendant also wrongfully charged to plaintiff’s account sometime between November 24, 1893, and December 31, 1893, the exact date of which is not known to plaintiff, a forged check of note, purporting to have been drawn by plaintiff, for $350.</p> <p>Plaintiff ayers that all of said forged checks and notes were-drawn by one J. Edward Simpson, who was a bookkeeper of plaintiff, and was neither a skilled penman, nor was he skilled in nor had he had any experience in the forging of either plaintiff’s signature or the signature of any one else, nor had he prior to the committing of said forgeries attempted to imitate even plaintiff’s signature. Defendant paid said forgeries without that careful examination it otherwise would have and should have given to said checks and notes, because they were presented to defendant for payment by said Simpson, who was known to the officials of defendant and in whom they had confidence.</p> <p>Plaintiff avers that he has never seen said forged checks or notes so charged against his account as aforesaid. When his bank book was settled on said dates of May 29,1891, August 4, 1891, September 29, 1891, December 24, 1891, May 12, 1892, September 8,1892, January 3,1893, February 28,1893, July 14, 1893, October 2, 1893, November 24, 1893, and December 31, 1893, said Simpson, without any authority from plaintiff, called upon defendant and obtained the canceled checks and notes, abstracted and destroyed said forged checks and notes and returned to plaintiff only the genuine ones, and then, in order to-conceal from plaintiff his wrongdoing, made forged entries and forced balances in plaintiff’s books so that the balance appearing upon plaintiff’s deposit book exactly corresponded with the apparent balance due by defendant to plaintiff upon plaintiff’s other books and accounts. Plaintiff in each instance upon the settlement of his account carefully examined the signature on the checks and notes actually received by him and found them all genuine, and carefully compared the amounts on the stub of his check book and note book with the amounts on the cheeks and notes actually received by him and found them correct, and compared the apparent balances and found them correct. On the credit side of the deposit book, when it was returned from settlement, was not stated the dates of the checks or notes paid, or anything by which the identity of any particular item could be ascertained, except by a comparison and analysis of the amounts stated in the account with the checks and notes and check book and note book, and sometimes they could not be identified even in that way, owing to the fact that the employees of defendant at times added the amounts of two or three items of credit together, and entered them as if one item. Said credit side showed, and showed only, a large number of amounts, without sequence of alleged dates of payment, or otherwise than crowded on the page as if for defendant’s convenience in comparison with its own accounts.</p> <p>As soon as plaintiff suspected that there was possibly some error in his bank account and books generally, he employed a skilled accountant, who spent several months in examining his books and papers, including said bank account and books, without discovering any error in said bank account or any books affecting the same. A second accountant, after several weeks’ examination, and after having had the benefit of the prior accountant’s work, discovered the system employed by said Simpson on the books and the wrongful charges in defendant’s books and accounts against plaintiff, and by examination of the plaintiff’s account in the books kept at and by the bank itself learned of the wrongful charges above set forth; thereupon plaintiff at once notified defendant thereof and made claim for the $13,090, so.as aforesaid wrongfully charged against his account, and for which he received no benefit. Plaintiff also at once caused the arrest of said Simpson, and he was duly tried, convicted and sentenced for the forgeries so as aforesaid committed by him.</p> <p>On May 22, 1894, defendant declined to recognize plaintiff’s claim, or to pay anything on account thereof or to recognize or to pay any checks drawn on account thereof, and expressly agreed to waive the formality of presenting a check drawn there-against.</p> <p>Defendant pleaded non assumpsit, payment with leave, etc., and set-off.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instruction in favor of defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instruction for defendant.</p>

<p> Church law—Church property—Divided congregation. </p> <p>Where the congregation of a church is divided, the title to the property is in the part, though a minority, which is in harmony with the laws, usages and customs accepted by the body before the division, and which adheres to the regular organization.</p> <p> Church law—Adverse possession—Evangelical Association. </p> <p>An owner of land conveyed a lot to a Baptist congregation for church purposes. Subsequently the Baptist congregation relinquished all claim to the lot to an Evangelical congregation, afterwards incorporated. At the suggestion and advice of th» landowner’s agent, the Evangelical congregal ion procured a quitclaim deed from the Baptist congregation, erected a building on the lot and remained in open, notorious, exclusive and adverse possession of the lot for over thirty years, when a division took place in the Evangelical Association of North America, of which this congregation was a part. Two conferences were held by said association, one known as the Indianapolis conference, and the other as the Philadelphia conference. The adherents of the Philadelphia conference in this congregation, who composed the majority, excluded their opponents from the use of the church. After the case of Iirecker v. Shirey, 163 Pa. 531, decided that the Indianapolis conference was the legal body, the adherents of the Philadelphia conference obtained a quitclaim deed from the original owner of the land. Subsequently the adherents of the Indianapolis conference brought an ejectment suit against the adherents of the Philadelphia conference in possession of the church. Held, that the plaintiffs represented the legal Evangelical congregation, and as that body had been in adverse possession for over thirty years, the plaintiffs were entitled to recover.</p>

<p>Deeds—Reservation of charge on land—Maintenance—Habendum—Mssignee's sale—Discharge of liens—Act of February 17, 1876.</p> <p>The habendum of a deed from D. and R. contained the following words: “Nevertheless the maintenance of D. and R., his wife, during their natural life is a part of the consideration herein mentioned, therefore this title does not become clear of all incumbrance until at the death of the said D. and R.” Held, (1) that the words charged upon the premises conveyed a maintenance for the grantors, and that this charge was a continuing lien; (2) that the grantors had the right to reserve such charge; (3) that such a charge is not discharged by a judicial sale.</p> <p>Assignment for creditors—Sale of land—Discharge of liens—Act of February 17, 1876.</p> <p>A charge for maintenance reserved in a deed by the grantor is not discharged by an assignee’s sale under the act of February 17, 1876, for the benefit of the grantee’s creditors.</p>

Appeal, No. 104, Jan. T., 1899, by McCahan & Cooper, from order of C. P. Carbon Co., Oct. T., 1885, No. 1, overruling exceptions to master’s report. Bill in equity for a receiver. Exceptions to master’s report.

Appeal, No. 403, Jan. T., 1899, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1895, No. 75, on verdict for defendant. Trespass for cutting timber. Rule for treble damages. Before Mamee, P. J. The facts appear by the opinion of the Supreme Court and by the opinion of the court below oh a rule to treble damages.

<p> Wills—Vested and contingent estates—Survivorship—Remainders. </p> <p>The testator gave his estate to his executor in trust for the benefit of his brother and sister, and particularized the trust as follows: “ To collect and receive the income of my estate, and upon the receipt thereof to pay over the same into the hands of my brother and my sister or their duly authorized agent or attorney. I hereby declare it is my will that my brother and sister shall receive the income of my said estate absolutely, and the survivor of them, with power to them or the survivor of them, to devise by any will or testament they or either of them may choose to make.” The brother and sister survived the testator. The brother then died leaving a will by which he disposed of his interest in the estate. Held, (1) that the trustee was entitled to retain the whole of the fund after the death of the brother, paying to the sister for life the entire income ; (2) that the sister had an appointment by will as to one half, and the other half upon her death would go as appointed by the will of the brother; (3) that half the small balance of income at the death of the brother should be paid to his executor.</p>

<p>Appeal, No. 51, Jan. T., 1899, by Mary A. Kelly, from decree of O. C. Phila. Co., April T., 1884, No. 544, sustaining exceptions to adjudication.</p>

Appeal, No. 86, Jan. T., 1899, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1891, No. 82, dismissing bill in equity. Bill in equity for an account. The case was referred to Hampton L. Carson, Esq., as master.

Appeal, No. 81, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., September Term, 1898, No. 1015, sustaining exceptions to referee’s report. Held: with the exception of a few shares, by meipbers of Howard R. Kern’s family, and of which he was the business manager. The price Mr. Salter stated that he received for the glue was $32,000, which was about seven and a half cents a pound. He allowed Howard $3,200 as commissions, and retained $5,000 for himself.

<p>Appeals, Nos. 82, 83, 84, 85 and 90, Jan. T., 1899, by plaintiffs, from judgment of G. P. No. 4, Phila. Co., Sept. T., 1898, No. 1015, sustaining exceptions to referee’s report.</p>

<p> Husband and wife—Postnuptial settlement—Creditors—Fraud. </p> <p>A postnuptial settlement on a wife by her husband, not indebted at the time, is good against subsequent creditors, if not made with a fraudulent intent as to them. Such a settlement, although void as against existing creditors, does not even raise a suspicion of fraud as against creditors whose debts had no existence when it was made.</p> <p>Where a husband conveys real estate to his wife for a consideration named, and many years afterwards contracts a debt, there is no presumption that the conveyance was in fraud of the creditor’s rights, and the wife is not bound to prove as against such a creditor that she paid the consideration money out of her separate estate.</p>

<p>Deeds—Improper description—Courses and distances—Monuments— Administrator's deed.</p> <p>Where there is no ambiguity in the description of land on the face of a deed, but the courses and distances are inconsistent with the monuments upon the ground, the courses and distances must yield to the monuments; and this rule applies to a deed made by an administrator in pursuance of an order of sale by the orphans’ court, although the result of the application of the rule will leave unsold a portion of the land which the administrator intended to sell.</p>

<p>Appeal, No. 99, Jan. T., 1899, by Eckley B. Coxe et al., from decree of O. C. Luzerne Co., No. 198, of 1895, confirming tbe report of appraiser of collateral inheritance tax.</p> <p>Appeal from appraisement of collateral inheritance tax.</p> <p>Darte, P. J., found the facts and conclusions of law as follows :</p> <p>EACTS.</p> <p>We make the following findings of fact: (1) Eckley B. Coxe, decedent, died testate ‘ at Drifton, Luzerne county, on May 13, 1895; (2) he appointed Alexander B. Coxe and Henry B. Coxe his executors, to whom letters testamentary issued on May 23, 1895; (3) he devised his entire estate to said executors in trust to pay the net income thereof to his wife, Sophia G. Coxe, during her life, and after her death in trust for his nephews and nieces living at his death, children of his brothers as set forth in said will, and the lawful issue living at his death of any nephew or niece, who shall then be dead, leaving such issue, their heirs, executors and administrators ; (4) the following are the names of all the nephews and nieces of decedent, children of his brothers, Brinton Coxe, deceased, Alexander B. Coxe, Henry B. Coxe and Charles B. Coxe, deceased, who were living at the time of his death, to whom he devised his estate, after the ending of the life estate devised to his widow, Sophia G. Coxe, viz: children of said Brinton Coxe: Charlotte D. Coxe, born November 21,1873, Eliza M. D. Coxe, born November 7, 1875, Mary R. D. Coxe, born January 29, 1877, Edmund J. D. Coxe, born May 3, 1881; children of said Alexander B. Coxe: Daniel Coxe, born November 1, 1866, Anna Coxe Yarnall, wife of Charlton Yarnall, born February 25, 1870; children of said Henry B. Coxe: "Henry B. Coxe, Jr., born February 12, 1866, Charles E. Coxe, bom July 12, 1870, Alexander B. Coxe, born September 9, 1875. Daniel Coxe, a nephew, as above, died on September 6, 1895, leaving no issue or the descendants of such issue surviving him, but leaving surviving him his father, Alexander B. Coxe, his mother, Sophia Coxe, his sister, Anna Coxe Yarnall, and his wife, Margaret Brinton Coxe; (5) at the time of the decedent’s death none of his nephews or nieces, children of his said brothers, had died leaving issue; (6) none of the said nephews or nieces, or the issue of any such, ever filed with the register of wills any return of the amount of their estate, taken under the will of said decedent, as provided in section 3 of the Act of Assembly of May 6, 1887, P. L. 79, entitled “An act to provide for the better collection of collateral inheritance taxes,” or paid or gave any bond to secure the payment of the collateral inheritance tax on their said estate, except the bond filed on appeal from the appraisement; (7) the personal estate of decedent which comes to the' knowledge of the appraiser, Stanley W. Davenport, was valued by him at the sum of $1,446,320.33 ; after deducting the value of the life interest of the widow, one third, there remained the sum of $964,212.56, upon which he assessed a collateral inheritance tax at the rate of $5.00 upon every $100, amounting to $48,210.62, and interest from May 13, 1896, at twelve per cent per annum.</p> <p>FINDINGS OF LAW.</p> <p>1. Subject to the life estate of the widow, Sophia G. Coxe, the personal estate of said Eckley B. Coxe, as appraised by Stanley W. Davenport, to the amount of $1,446,320.33 vested at the death of the decedent in his nephews and nieces, as identified in the fourth finding of fact.</p> <p>2. After deducting one third thereof as the proper legal value of the widow’s life estate, there remained the sum, $964,212.56, of which said nephews and nieces were the owners.</p> <p>3. Said owners having failed to make a full return of said personal estate to the register of wills of said county within one year from the death of the decedent, to wit: on or before May 13, 1896, or within that time to enter into security to pay the collateral inheritance tax thereon to the satisfaction of said register, the said tax has become immediately payable and collectible, amounting to $48,210.62, with, interest thereon at twelve per centum per annum, from May 13, 1896.</p> <p>Andnow, January 28,1899, we confirm the report of appraiser, Stanley W. Davenport, and dismiss the appeal therefrom at the ' cost of the appellants.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals, Nos. 20 and 142, Jan. T., 1899, by defendants and plaintiff, from decree of C. P. Blair County, Equity Docket D, No. 301, on bill in equity.</p> <p>Bill in equity for an injunction. Before Bell, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p> Negligence—Railroad—Master and servant—Brakeman—Contributory negligence. </p> <p>In an action against a railroad company by a brakeman to recover damages for personal injuries, the case is for the jury where the evidence shows that the plaintiff was injured while in the performance of his duty in a space between the inner and outer rails of two sidings; that this space was insufficient in width to enable a brakeman properly to discharge his duties, and that the plaintiff had no knowledge of the insufficiency of the space.</p>

Appeal, No. 167, Jan. T., 1899, by defendants, from decree of C. P. Erie Co., Nov. T., 1898, No. 1, on bill in equity. Bill in equity for an injunction. Before Morrison, J., of the 48th. judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeal, No. 362, Jan T., 1898, by defendant, from decree of C. P. McKean Co., June T., 1897, No. 2, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the previous report in the case in 186 Pa. 215, and by the opinion of Olmsted, P. J., which was as follows:</p> <p>The Olean, Bradford & Warren Railway Company was incorporated September 29,1877. It was soon after constructed and operated as a narrow gauge road, from. Olean, N. Y., south to Bradford, Pa., and to other points further south. Some time prior to 1882 the Rochester & Pittsburg Railroad was incorporated. It was constructed and operated as a standard gauge road from Rochester, N. Y., to Bradford, Pa., and other points further south. It became necessary for the Rochester & Pittsburg road to cross the Olean, Bradford & Warren Railroad at a point near the city of Bradford, the present point of controversy. Legal proceedings were instituted for that purpose, and on June 17,1882, the contract given in evidence was entered into between the contracting corporations. On the-day of May, 1897, the plaintiff corporation, claiming the rights of the Olean, Bradford & Warren Railway, sought to widen the gauge of its-road at the point in controversy, as it had already done some distance to the north. It was resisted and prevented by the defendant corporation, and on the-day of May, 1897, the bill was filed in this case praying for an injunction to “restrain the defendant from preventing the plaintiff from widening its gauges at the point in controversy.” An injunction was issued, as prayed for, the case was appealed to the Supreme Court and affirmed, and on September 12, 1898, this case came on for the final hearing of the bill, Messrs. Mullía & Rumsey appearing for the plaintiff, and Messrs. Berry & Edgett appearing for the defendant.</p> <p>At the hearing for the preliminary injunction, a large amount of evidence was taken and certified by the stenographer. An agreement has been filed signed by the solicitors of the parties, that this evidence should be considered by the court in the final disposition of the case, and to have the same force as though retaken, and that further evidence might also be taken, and at the hearing on September 12, some further evidence was taken, and will be found among the files. Since the former hearing, a cross-bill has been filed by the defendants. On the former bearing, the law and the facts of this case were gone over at great length by the solicitors, and deeming it our duty to do so under the present rules of practice in equity, an opinion was filed by the court, giving the reasons which induced the action of the court. I assume that the record of the first trial will be before the Supreme Court on the hearing of the pending question, and that it is not necessary that I should repeat what I have already written, and for that reason, I confine myself in this opinion merely to the matters added since the former hearing.</p> <p>We have been requested in writing by the counsel for the defendant to find the following facts:</p> <p>1. The Olean, Bradford & Warren Railway Company was incorporated under the act of assembly of the commonwealth of Pennsylvania, approved March 18, 1875, as a narrow gauge railway, and its charter, as well as the act of assembly, expressly limits the width of track to three feet. Answer: I find, as requested in this first request of findings, that the Olean, Bradford & Warren Railway was incorporated as a narrow gauge railroad, and the gauge is so fixed in its charter. It was incorporated on September 28,1877. It was incorporated agreeably to the provisions of the act of the general assembly of Pennsylvania, entitled, “An act to authorize the formation and regulation of railroad companies,” and the several supplements thereto.</p> <p>2. There is no evidence of any amendment to, or change of, this charter, and the chartered rights of the Olean, Bradford & Warren Railway Company are now the same as when the charter was granted. Answer: To the second request, we say that there is no evidence of any amendment to, or change of, this charter by any special legislation, and its chartered rights are such as are given to such corporations by the general laws of the commonwealth.</p> <p>3. There has been no consolidation or merger of the Olean, Bradford & Warren Railway Company into or with any other railroad or railway company. Answer: There was no technical merger of the Olean, Bradford & Warren Railway with the Western New York & Pennsylvania Railway by the provisions of the contract of December 8, 1881. Technically, it was a-lease for 999 years. It was not a statutory merger.</p> <p>4. The only interest or title that the plaintiff company acquired in or to the property of the Olean, Bradford & Warren Railway Company is that of lessee by virtue of a certain lease made by the Olean, Bradford & Warren Railway Company to the Buffalo, New York & Pennsylvania Railway Company, dated December 8, 1881. Answer : We have just said in answer to the third request that the contract of December 8,1881, was technically a lease.</p> <p>5. The plaintiff has introduced no evidence showing the character of its ownership or right of possession of any land or property at the point of crossing, except the evidence of B. J. Wilmoth to the effect that it had at the point of crossing the possession of the right of way in 1882. Answer: This point we find as stated, with the qualification that Wilmoth says it has occupied forty feet in width, and deeds offered by the defendant showing the defendant’s right, show a reservation to the Olean, Bradford & Warren Railway.</p> <p>6. The defendant, the Buffalo, Rochester & Pittsburg Railway Company, has succeeded to the title to a right of way over the land at the point of controversy by virtue of sundry conveyances from James W. Hilton, who was the owner of the fee at the time the Olean, Bradford & Warren acquired, if it acquired at all, its right of way. Answer: I find, as requested in this point, that the defendant company has succeeded to the title to a right of way, but by grants subsequent to the occupying by the Olean, Bradford & Warren Railway, and the right of way to the Olean, Bradford & Warren is reserved in the grants.</p> <p>7. Prior to the beginning of said action, the railroad, roadbed and property of the Olean, Bradford & Warren Railway Company, from a point near the old passenger station in the city of Bradford, formerly known as the Kendall passenger station, and being about one and a half miles north and east of Main street in said city, to the village of Olean, in the state of New York, had ceased to be operated as a steam railway, and was then in possession of, and being prepared for operation by, an electric railway company, and that for a long time prior to the instituting of said action the operation of the said railroad had been abandoned from the village of Red Rock, in the county of McKean, to the village of Olean, hi the state of New York. Answer: I cannot say that the plaintiff company has abandoned their road from Olean to Foster Brook, but find that over a considerable portion of way between the two points mentioned an electric road is being operated, but there is no evidence in the case showing under what arrangement, if any, this is being done.</p> <p>8. A portion of the line of the Olean, Bradford & Warren Railway Company, extending from Bradford south to a point near Marshburg, in McKean county, and being a distance of about twelve miles, had ceased to be used as a railroad, had not been operated as a railroad, has been abandoned for a railroad, and, as testified to by R. Bell, superintendent of the Western New York & Pennsylvania Railway Company, that there is no prospect of a resumption of operation. Answer: In answer to this request, I find that the line between the points mentioned is not now operated by the running of trains, and that Mr. Bell has testified that there is no prospect of a resumption of operation.</p> <p>9. That the only portion of the Olean, Bradford & Warren Railway between the village of Olean, in the state of New York, and the village of Marshburg, in the state of Pennsylvania, being a distance of more than thirty miles, which is now proposed to be operated by the plaintiff company, is a short piece of road, not exceeding a mile and a half or two miles in length in the city of Bradford. Answer: The portion of the Olean, Bradford & Warren Railway between the village of Olean, in the state of New York, and the village of Marshburg, in the state of Pennsylvania, a distance of near thirty miles, is not now operated as a steam road, except the distance from Foster Brook to Bradford, some two miles. What the future purpose of the defendant company may be, I cannot definitely determine.</p> <p>10. All of the manufacturing interests and plants which it is proposed to reach by this short piece of road are now reached, and can be reached by the plaintiff company over the tracks of the Buffalo, Rochester & Pittsburg Railway Company, and by the means of such tracks, switches and sidings. Answer: I find that by the contract of June 1, 1896, the plaintiff company has the right to use the trades and switches of the defendant company at Bradford for five years from that date, and that existing manufacturing plants can be reached by such tracks, switches and sidings.</p> <p>11. The evidence discloses that the sole purpose of the plaintiff company in seeking to obtain this crossing is to use the same for switching purposes. Answer: I find that the present purpose of plaintiff 'company in seeking to widen this crossing is for switching purposes, and for easier access to the existing manufacturing plants.</p> <p>12. The evidence shows that the only purpose to be fulfilled by the widening of this crossing is to serve the private convenience of the plaintiff company; there is no evidence of any public demand or necessity for the same. Answer: I do not find as requested by this point. The widening of the crossing would be a convenience to the plaintiff company in handling freight, and therefore is of some interest to the public.</p> <p>18. The possession of the old roadway of the Olean, Bradford & Warren Railway Company at the point of crossing and ownership of the same, has been in the Olean, Bradford & Warren Railway Company, subject to its lease to the Buffalo, New’ York & Pennsylvania Railroad Company. Answer: I find, of course, that the possession of the old roadway of the Olean, Bradford & Warren Railway Company, at the point of crossing, and ownership of the same, has been in the Olean, Bradford & Warren Railway Company, except as affected by its lease to the Western New York & Pennsylvania Railway Company.</p> <p>14. The Olean, Bradford & Warren Railway Company is not seeking to make this crossing. Answer: I cannot find as requested in this point.</p> <p>15. The Olean, Bradford & Warren Railway Company has never authorized this crossing to be made, or widened, or changed by the plaintiff. Answer: I cannot find as requested in this point.</p> <p>Requests by defendant for conclusions of law:</p> <p>1. The Buffalo, Rochester & Pittsburg Railway Company having succeeded to the title to a right of way over the lands at the point involved in this controversy, and the Olean, Bradford & Warren Railway having only an easement for the right of way over said lands, and said Olean, Bradford & Warren Railway Company, or its lessee, having abandoned all of its line between the village of Olean, in the state of New York, and a point near Marshburg, in the state of Pennsylvania, except a short piece of about one and a half or two miles in the city of Bradford, such abandonment works a forfeiture, which forfeiture accrues to the defendant, can be insisted upon by such defendant and will prevent the plaintiff in this cause having the relief asked for. Answer: We answer in the negative.</p> <p>2. The plaintiff claiming under the Olean, Bradford & Warren Railway Company, under all the evidence in this case, having abandoned the operation of its road, held by it as lessee as above set out, has no right to make this crossing, the right which the Olean, Bradford & Warren Railway Company had acquired by its charter having lapsed by reason of such abandonment. Answer /We answer this in the negative.</p> <p>3. The Olean, Bradford & Warren Railway Company being by the terms of its charter expressly restricted to the constructing and operating a road with a gauge not exceeding three feet in width, and not having amended its charter or procured any additional charter, has no power to construct or operate a road with a gauge exceeding three feet at the point of crossing, or any other point on its line, and its lessee, the plaintiff in this action, having no greater rights than the Olean, Bradford & Warren Railway Company, is not entitled to the relief asked for. Anstver : We answer this request in the negative.</p> <p>4. There being no evidence of any corporate act on the part of the Olean, Bradford & Warren Railway Company authorizing the plaintiff to widen this crossing, such act is in excess of the power conferred by the lease from the Olean, Bradford & Warren Railway Company to the Buffalo, New York & Pennsylvania Railway Company, and the plaintiff company has no authority in law to change the crossing in any way, widen the same or to operate any changed or widened crossing. Answer: It being expressly stated in the eighth paragraph of the plaintiff’s bill that the board of directors of the Olean, Bradford & Warren Railroad and the Western New York & Pennsylvania Railway had passed resolutions to widen their gauge, and this not being denied in the answer to said paragraph, it is in legal effect admitted, and is so to be taken. See Penna. Schuylkill Valley Railroad Co. v. Philadelphia & Reading R. R. Co., 160 Pa. 277. No such question is raised by the pleadings, and if it were, the evidence in the case shows the passage of the resolution by both hoards of directors to widen this gauge.</p> <p>5. The plaintiff, having acquired by its lease only the power to operate and construct a railway, has no power to make any change in the width of the gauge of said road, or to change its crossing. Answer: We cannot affirm this point under the evidence in the case.</p> <p>6. The resolution of the board of directors of the Olean, Bradford & Warren Railway Company, in evidence in this ease, does not confer any authority upon the plaintiff to widen this gauge or to change the gauge of said road. Answer: We cannot affirm this point under the evidence in the case.</p> <p>7. The defendant having succeeded to the ownership of a right of way is in a position to insist upon all rights of the premises which J. W. Hilton, under whom the plaintiff claims, could have had in the premises, and the Olean, Bradford & Warren Railway Company, having abandoned the operation of its road for the greater part of its length, cannot retain, either by itself, or through its lessee, possession of a small portion of its right of way for the purpose of operating thereon a switch or a road to be used solely for switching purposes ; and therefore the plaintiff is,not entitled to the relief prayed for in its bill. Answer: We cannot affirm this point.</p> <p>8. The charter of the Olean, Bradford & Warren Railway and the act of assembly under which the same is granted in express terms limiting the width of the road to be built thereunder to three feet, no road of a greater width could be built, operated or maintained under said charter, or under the lease from the said Olean, Bradford & Warren Raihvny Company to the Buffalo, New York & Pennsylvania Railway Company, and therefore the plaintiff is not entitled to relief asked for in its hill. Answer: We cannot affirm this point.</p> <p>9. The plaintiff company having.in its argument before the Supreme Court abandoned any right to this crossing under the contract of June 17, 1882, its sole right to relief prayed for must be predicated upon the act of 1871, and upon such terms as the court would impose and upon a-bill filed specifically ■under the provisions of said act, and cannot be granted in the said proceedings. Answer: We decline to find as requested in this point.</p> <p>10. Under all the evidence in the case, the bill must be dismissed. Ansiver: We answer this point in the negative.</p> <p>It appeared to me on the former hearing in this case that the right of the Olean, Bradford & Warren Railway Company to widen its gauge from three feet to four feet eight and one half inches was too clear for argument. The Act of April 11, 1853, P. L. 366, expressly provides “ that every railroad company heretofore chartered, or which may hereafter be chartered, is hereby authorized to construct or change their gauge or gauges of road to such width as the directors of such railroad company may deem expedient, and all laws inconsistent with this provision be and they are hereby repealed.” Again, by the Act of March 17, 1869, P. L. 12, it is enacted “ that it shall and may be lawful for any railroad, canal, and slack-water navigation company, now or hereafter incorporated under any laws of this commonwealth, to straighten, widen, deepen, enlarge and otherwise improve, the whole or portions, of their lines or railroads, canals, and slack-water navigation, and the bridges, crossings, sidings .... wherever, in the opinion of the board of directors, the same may be necessary for the better securing the safety of persons and property, and increasing the facilities and capacity for the transportation of traffic thereon.” If these statutes do not grant the power to the Olean, Bradford & Warren Railway Company to widen its gauge and crossing, then the English language is an unfortunate one in which to express human thought.</p> <p>My attention has not been called to any decision construing these statutes except Millvale Borough v. Evergreen Railway Company, 131 Pa. 1, in which the widening of a gauge was in effect sustained. It is contended with much skill, by the counsel for the defendant, that there has been a legal abandonment of the line of the road, and that the power of the company to widen the gauge of the road from Foster Brook to Bradford city is lost by reason of such abandonment. This, of course, is predicated upon the idea of forfeiture of the charter, and we are asked to so hold. We cannot so decide. The commonwealth is the grantor of the franchise. Whether it has been forfeited by nonexercise or otherwise is a question between the commonwealth and her grantee. If the commonwealth does not choose to exercise her right to assert the forfeiture, the decisions, as we understand them, do not confer that right upon a private litigant. This doctrine is held by an unvarying line of cases by our Supreme Court from Irvine v. Lumberman’s Bank, 2 W. & S. 204, down to the case of The Petition of the Philadelphia & Merion Railway Company, to be found in 187 Pa. 123. The case of the Western Pennsylvania Railroad Company’s Appeal, 104 Pa. 399, is a strong case upon this question, as it construes the Act of June 19, 1871, P. L. 1361. It was contended on the trial of the above case that under the 1st section of the above cited act the court had the right to inquire into the facts as to the forfeiture as though on a bill filed by the attorney general in the name of the commonwealth against the defendant. To this contention, the court held that “the act of 1871 contemplates nothing more than that it shall be made to appear from the charter that the corporation has the power to do the particular act in controversy and which involves some right of the contestant, but when we get beyond this, we assume something with which we have no business in a collateral proceeding; we assume to assert the rights of a third party, the commonwealth, who may or may not, at her own option, insist upon the observance of those rights.”</p> <p>Since the former hearing a cross-bill has been filed in the case, averring that a grade crossing at the point of controversy would be dangerous to the public, and some evidence has been taken by both parties upon that question, and before proceeding farther a reference to the facts of the case may aid us in its decision.</p> <p>The Olean, Bradford & Warren Railroad was incorporated September 29,' 1877. The gauge mentioned in the charter was three feet.- It was immediately after constructed and operated as a three-foot road. About 1882 the Rochester & Pittsburg Railroad Was incorporated. This road was soon afterwards constructed and operated from Rochester, in the state of New York, to some point south, or southwest of Bradford city. By various charters and transfers, not necessary to detail here, it became the Buffalo, Rochester & Pittsburg Railroad, and is operated by that name, and as such is made defendant here. It became necessary, in the opinion of the board of directors of the Rochester & Pittsburg, that it should cross the Olean, Bradford & Warren Railroad at a point near Bradford, the present point of controversy. Legal proceedings are constituted to accomplish that purpose, and on June 17, 1882, a contract was entered into between the Olean, Bradford & Warren Railroad and the Rochester & Pittsburg upon the subject of this crossing, and by this contract the Rochester & Pittsburg was permitted to cross the Olean, Bradford & Warren Railroad at Bradford, the point now in controversy. (This contract contains other matter not necessary to refer to here.) This crossing was made and is operated up to the present time. For present purposes we may consider that the rights of the Olean, Bradford and Warren Railroad passed into the control of the Western New York & Pennsylvania Railway, the party plaintiff in this case. The Western New York & Pennsylvania Railway is a standard gauge, and at the present time gets its trains into Bradford over the tracks of the Buffalo, Rochester & Pittsburg Railway for some nine and one half miles, under contract of June 1, 1896, given in evidence in this case. The plaintiff then seeks to widen the gauge of what was formerly the Olean, Bradford & Warren from Foster Brook to the station in the city of Bradford. This renders it necessary that the track should be increased in width at the point where the defendant crosses.</p> <p>Now how can it be successfully contended that the plaintiff stands in the position of a railroad being constructed reaching another road already in operation, that it must necessarily cross. It (the plaintiff) is prior in right. It existed and was successfully operated without a crossing. The defendant company, partly by law and partly by the grace of the plaintiff, obtains a grade crossing. The defendant has the crossing, not the plaintiff. If a grade crossing at the point in controversy is dangerous, the defendant should be called upon to remedy the evil. It would be a strange condition if one railroad could obtain the right to cross an existing railroad, either for a consideration, or otherwise, and then turn around and say this grade crossing which I have obtained from you is dangerous, and you must be at the great expense of elevating your tracks. The plaintiff is not seeking to make a crossing, but to widen its tracks at a point where the defendant has a crossing. It is difficult to understand how this track, if made a few inches wider, at the point of defendant’s crossing, can injure the defendant or endanger the public.</p> <p>I can hardly think that the Act of June 19,1871, P. L. 1360, has any application to the case before us. “ Under that act, the court shall define by decree the mode of such crossing, which will inflict the least practical injury upon the rights of the company owning the road, which is intended to be crossed.” “ The act applies where a new line proposes to cross an existing road, that is, there must be an ‘ intended ’ crossing of the existing road. There is no provision for an interference where the parties have established the crossing, and used it: ” Junction Railroad Company v. Citizens Passenger Railway Company, 9 Montgomery County Law Reporter, 103. The construction of the crossing is what the statute says shall be regulated by the courts, and this with a view to avoid danger and protect the older’s franchise from injury by the younger one: Traction Company v. Canal Company, 180 Pa. 642.</p> <p>I find in all cases reported in Pennsylvania since the act of 1871, where a crossing is sought, and the Supreme Court have given effect to said act, that the application to cross has come from the younger corporation, and where an overhead crossing, or a crossing below grade, is decreed, that it has been done at the expense of the younger corporation. But suppose it to be the duty of the court, under the act of 1871, to regulate this crossing, should they require it to be an overhead crossing ?</p> <p>There are many things to be considered by the court in determining whether a crossing shall be at grade, or otherwise, and one of these is the cost. While .this is by no means always a controlling consideration, in this case it has much significance. The defendant’s witness, Hoyt, testifies that the expense of this crossing would be about $85,000, exclusive of additional rights of way that would have to be obtained. This amount is so great as to entirely preclude the possibility of an overhead crossing on any road except one of the greatest importance. In Penna. Schuylkill Valley Railroad v. The Philadelphia & Reading Railroad, 160 Pa. 277, the Court held that a court of equity will not, under the Act of June 19, 1871, P. L. 1361, decree the construction of an overhead crossing where the cost of such crossing would be so great as to prevent the construction of the railroad. The cost of the crossing in the above case was found by the master to be from $40,000 to $60,000, including damages and additional right of way. The strongest case against grade crossings to be found in our reports is Perry Co. R. R. Co. v. Railroad Co., 150 Pa. 194, but in that case the plaintiff road undertook to trample the defendant road into the dust. The plaintiff undertook to cross the defendant’s road twice in four miles, making a loop, while the evidence demonstrated that by the expenditure of $20,000, the plaintiff company could have constructed its road over a practicable route without any crossing whatever. In Railway Co. v. Railway Co., 149 Pa. 1, the Court permitted a grade crossing, although the finding was that an overhead crossing would cost but $9,000. In Traction Company v. Canal Company, 180 Pa. 640, the Supreme Court decreed an overhead crossing, the evidence showing the construction would cost but from $6,000 to $8,000. In Altoona, etc., R. R. Co. v. Railroad Co., 160 Pa. 624, the Court said that four grade crossings within eight miles will not be permitted, when it is reasonably practicable to construct overhead crossings at a cost of from $12,000 to $15,000 each. The facts as presented in this case are certainly strongly against the practicability of a crossing, except at grade.</p> <p>At the former hearing of this case, the contract of December 8, 1881, between the Olean, Bradford & Warren Railway and the Buffalo, New York & Pennsylvania Railway, was treated as a merger contract. This was incorrect, as the contract itself purports to be a demise, or lease for 999 years, the corporate existence of the Olean, Bradford & Warren Railway still being retained by the terms of the contract, and now the idea suggests itself whether this action is technically correct in the name of the Western New York & Pennsylvania Railway, without joining in any way the name of the Olean, Bradford & Warren Railway; but as this objection, if it exists at all, is a purely technical one, and in no way affects the merits of the controversy, and can be corrected by amendments without injury to the defendant, we have concluded to pass it by, at least for the present.</p> <p>I am of the opinion that the plaintiff is entitled to'the relief prayed for in this bill.</p> <p>Error assigned was the decree of the court.</p>

<p> Contracts—Entire and several contracts—Intention. </p> <p>The entirety of a contract depends on the intention of the parties and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown.</p> <p>There is nothing to prevent parties even in entire contracts from agreeing to partial payments pending the full performance.</p> <p>Plaintiff agreed to sell to defendant 800,000 feet of lumber, the defendant to pay “the sum of $7.25 per thousand feet when loaded on cars.” Plaintiff delivered 284,000 feet of lumber on the cars. He excused his failure to deliver the full amount by alleging a rescission of the contract because defendant failed to make the payments due. It also appeared that plaintiff had sold over one half of the lumber covered by the contract to another party, and thereby disabled himself from fulfilling his agreement. He, however, alleged that this sale was with defendant’s consent. Held, (1) that the question of the rescission of the contract was for the jury; (2) that the question as to whether the defendant had consented to the sale to the other party was for the jury; (3) that if the sale to the other party was before the rescission, and without defendant’s consent, the contract was so far entire that plaintiff could not recover on it at all.</p>

<p>Appeal, No. 279, Jan. T., 1898, by William W. and Isaac H. Brownfield, from decree of O. C. Fayette Co., Sept. T., 1895, No. 40, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, W. A. Hogg, Esq., reported as follows:</p> <p>Isaac Brownfield died in South Union township, Fayette county, Pa., on September 11,1890, possessed of the home farm upon which he resided, and which was underlaid with the vein of Connellsville coking coal. By his will, which was duly probated on May 19, 1894, he devises the home farm to his sons, Isaac and William, and he also appointed the same two sons executors of his will; and in his will, he directed that his executors should pay to each of his four daughters, Jane, Malinda and Elizabeth Brownfield, and Anna B. Crossland, a sum of money equal to one-sixth part of the value of the coal under the said farm, and he authorizes his executors to sell the coal for this purpose if they wish to do so; and he directed his executors to invest and retain control of the bequest to his daughter, Anna B. Crossland.</p> <p>On March 3, 1891, the six children of Isaac Brownfield executed an agreement among themselves, .... by which Anna and Malinda agreed to settle, and accept the sum of $13,000 as the amount of the legacy due them as the one sixth of the value of the coal. The executors subsequently arranged for the sale of the coal under the home farm to Halleck G. Baldridge for the sum of $187,000. The said Halleck G. Baldridge, in order to complete his title, requested that the deed should be made to him by all the heirs of Isaac Brownfield; and on August 18, 1894, this deed was made by the heirs of Isaac Brownfield, to Halleck G. Baldridge, for the consideration of $187,000, and being all the coal owned by said estate, under said land.</p> <p>William and Isaac Brownfield, on August 5, 1895, filed their account, as executors of Isaac Brownfield, deceased, and on the same day filed their account, as trustees of Malinda Brownfield. In the executor’s account, the accountants do not charge themselves with the bequest of the one sixth of the value of the coal; but in their account, as trustees of Malinda Brownfield, they charge themselves with this bequest, at the sum of $13,000. On September 13,1895, Malinda Brownfield filed exceptions to this account of the trustees, and I have been appointed auditor to pass upon these exceptions, and to restate said account if necessary.</p> <p>The first exception is that the accountants should have charged themselves with the one sixth of $187,000, which was the sum for which Isaac and William Brownfield sold the coal to Halleck G. Baldridge, instead of charging themselves with $13,000, as provided by tbe agreement of March 8, 1891. . . . The ex-ceptant claims that this agreement is invalid, for the reason that it is made between the accountants and their cestui que trust. The accountants, in their account as executors, have not charged themselves with, or accounted for the bequests of one sixth the value of the coal to each of the daughters, but they have filed separate accounts, as trustees of Anna B. Crossland and Malinda Brownfield, in each of which they charge themselves with this legacy at $13,000.</p> <p>Whether the bequest to Malinda Brownfield was accounted for in the general executors’ account, or in this separate trustees’ account, the fund is the same, and the powers and duties of the accountants are the same. The bequest is provided by the will, and the accountants are authorized by the will to sell the coal, if necessary, to pay it, and the account itself purports to be an account by trustees under the will of Isaac Brownfield, deceased; and I have found that the relation of trustee and cestui que trust existed between the accountants and Malinda Brownfield at the time the agreement of March 3, 1891, was made. It is true the will had not yet been probated, or letters testamentary issued to the executors when the agreement was made, but the will was put in force by the death of the testator, and the accountants were invested with the powers given them by the will. . . . The agreement itself recognizes them as executors by providing that, as executors, they should accept the valuation at $13,000, and as such executors perform other duties provided for in the agreement. If this agreement of March 3, 1891, would be illegal after the will was probated and letters issued, it would not do to hold that the executors could make an agreement valid that would otherwise have been invalid, by delaying the probate of the will until after the execution of tbe agreement, and I have considered the accountants trustees, just as if the will had been probated, and letters testamentary were issued to them.</p> <p>This brings us to the question whether under the_ terms of the will, creating them trustees, the accountants could make the agreement of March 3, 1891. It has been argued before the auditor that this is only a partial account. The account is stated in its title to be a “ first account,” but in the trustees’ account, which is virtually part of the executors’ account, this legacy is brought into the account, and the dispute is only as to the amount. When an accountant brings a matter into an account, even if only a partial account, it is subject to exception and surcharge: Shindel’s Appeal, 57 Pa. 43; Galloway’s Estate, 5 Pa. Superior Gt. 272. The case before us must be distinguished from that class of cases, where the trustee, being in control of the estate, buys up outside claims against the estate, and then attempts to collect them against the estate for the individual gain of the trustee. Such is the case in Woods v. Irwin, 163 Pa. 413. In this case, Mrs. N. Adaline Irwin was executrix of Ninian Irwin, deceased, and after the death of Ninian Irwin, she became the owner of a claim for $15,000, by paying therefor the sum of $1,000, which claim had existed against the estate before the death of Ninian Irwin. It was here held that this claim against the estate was void for all over the sum of $1,000. Dilworth’s Appeal, 108 Pa. 92, and many other cases cited are where the trustees buy up outside claims against the estate for which they are trustees. These cases, however, are to be distinguished from cases where the trustees make contracts with the cestui que trust himself, and the case before us is of this class. The contract alleged to be invalid was made between the accountants and Malinda Brownfield et al. It is true that where trustees make contracts with their cestui que trust, they are held to a much stricter rule than when dealing with other persons with whom this relationship does not exist. The trustees are bound to act to the utmost good faith in making the contract, and cannot use the powers of their office against the interest of the parties for whom they are trustee. . . . Malinda Brownfield testified that the agreement was not requested by herself; that the executors desired to pay her some interest on her share in the estate; that they had told her not to talk to any one about it; that it' was not her understanding that she was selling or fixing the value of her interest, but only arranging for the payment of interest to her; that she had no conversation with her trustees relative to the making of this agreement before it was brought to her, and she did not know it was being prepared at all; that she did not know that by signing the agreement she was selling her interest in the coal; that the only reason given by the executors was that they wished to pay her part of the interest; that the executors had never advised her to consult any person in regard to the agreement. Mrs. Anna B. Crossland testified to substantially the same facts as Malinda Brownfield.</p> <p>Against this evidence, Isaac H. Brownfield testifies that Mrs. Crossland and Malinda Brownfield first mentioned to him the subject of such an agreement, for the purpose of getting her interest in the estate in such shape that it would bring her an income; that he told her before the agreement was signed, to go to an attorney, or any other friend she wished, for advice; that he showed her the agreement of March 3, 1891, the night before it was signed, and she read it; that he never said to her not to talk of the agreement, but gave her contrary advice; that there was no understanding or agreement that she would receive more than the 113,000 ; that the agreement was talked of before it was signed, and thoroughly understood. William Brownfield testified that the agreement of March 3, 1891, was made because Mrs. Crossland and Malinda Brownfield wanted the money from the estate; that they asked the executors what they would give for their interests ; that the subject was talked over with Mrs. Anna B. Crossland and Malinda Brownfield several times before the agreement was signed; that he told them to see an attorney, or any one they -wished to see for advice. . . . Both Anna and Malinda testified that the accountants requested and advised them not to consult outside parties before signing, while both accountants testify that, on the contrary, they advised their sisters to consult some outside person, or attorney, before signing. Jane and Elizabeth are disinterested witnesses, and they say they heard their brothers advise Anna and Malinda to consult outside parties. . . . The preponderance of the testimony, both as to number of witnesses and their apparent clearness of memory, is that the brothers advised Anna and Malinda to obtain outside advice, and I find as a fact that the accountants did not attempt' to conceal the effect of the agreement from their sisters, but advised them to obtain outside advice. The agreement itself is drawn in plain words, and its meaning is clear, and any one of the intelligence and education of the exceptants could scarcely read the agreement without understanding its meaning. Malinda Brownfield testifies that she saw, the agreement before the time at which she signed it, and had read parts of it before signing it. Miss Jane Brownfield and Elizabeth Brownfield testify that the exceptants were given an opportunity to read the agreement, and I find as a fact that the accountants gave the exceptants opportunity to examine the agreement of March 3, 1891. The exceptants testify, however, very positively that they did not know, and never knew, that by the agreement they were fixing the value of their legacy, or, as they seem to have considered it, their interest in the farm, by the agreement, but that they thought they were only arranging for income to themselves, from the estate. ... It was testified to, however, that Malinda Brownfield considered over a night, as to whether to sign as Elizabeth and Jane, or as Anna. The difference between them in the agreement was that the first two were not fixing the valuation, or selling, while Anna was fixing the valuation for final settlement, or payment.</p> <p>The fact that Anna Crossland and Malinda Brownfield joined in the deed to Halleck G. Baldridge does not show the intention of the parties at that time, or what was their prior intention. In any event, the purchasers would desire this deed to protect them against contingencies, and in any event, the daughters would probably sign. All sisters did sign alike. Both the ones that had fixed the valuation by the agreement and the ones who had not. I have found as a fact that at the time the agreement of March 3, 1891, was signed, the parties knew its contents.</p> <p>I have next taken up the amount of coal, and I have considered this the most important fact outside of the actual misrepresentations claimed to have been made by the trustees. . . . I have found as a fact that the executors made no misrepresentations to Mrs. Crossland and Malinda Brownfield as to the amount of the coal, but that they did not inform them of the amount of coal under the land, and that, while there were about 233 acres of coal, Anna and Malinda thought there was coal under part of the original tract of less than 100 acres. I do not find the executors in any way misrepresented the amount of this coal to their sisters, or intentionally concealed it from them, but that they had information as to the amount of coal under the land; that this information was essential to safely enter into this contract of March 3, 1891; that the exceptants did not have this information; that the executors failed to impart this information to their cestuis que trust, and they made the agreement without knowing the amount, or the approximate amount, of the coal. In this respect the executors or trustees failed to fulfil the conditions required for a valid contract between trustees and their cestuis que trust, and I have, therefore, found that the agreement of March 3, 1891., is not a valid agreement.</p> <p>If this agreement is invalid, we must then determine the amount of this legacy of one sixth of the value of the coal outside of the agreement, and this can only be done by determining the value of the coal from the testimony. In considering this question, it is first necessary to fix the date at which the one sixth of the value of the coal shall be determined. The will bequeaths the coal absolutely to the sons, William W. and Isaac, and the daughters have no property hi the coal, but they have the bequest of a sum of money equal to the one-sixth part of the value of the coal under the land.</p> <p>It is a well-known general rule that wills go into effect as to the date of the death of the testator, but in fixing values of bequests, it has been held that the will is to be considered as to the date of the will. ... I have, therefore, considered the value of the coal as of September, 1890. It is well known, and is brought out in the testimony, that prior to the years 1890 and 1891, the coal in the southern end of the county, and in the vicinity of the Brownfield coal, was not considered as good coking coal as that farther north, or, as it is spoken of in the testimony, north of the pike. The large coal and coke operators were then just entering the coal fields in the southern end of the county, and this coal more than doubled its value in a short time. As the witness now sees the situation, he knows that the coal had the inherent value in the year 1890, and only needed to be held to get the large prices of later years. But in 1890 the coal in this locality seems to have been selling from $250 to $400 per acre. Men who had money and were purchasing coal were not paying over this sum for coal. People did not have the information of later developments upon which to form their opinions. . . . Mr. Thompson estimated the coal at that time (testator’s death) as worth $400 per acre. This is a higher price than any of the coal in the neighborhood had sold for up to that time, so far as shown by the testimony, and the witnesses spoke of a number of sales of coal, made in that locality prior to September, 1890, for prices ranging under $400 per acre. I have found the value of the coal in September, 1890, to have .been $400 per acre. . . .</p> <p>I have charged the accountants with one sixth the value of 233 acres of coal at $400 per acre, or $15,533.33.</p> <p>The second exception is to the proper amount of interest due the exceptant on this legacy. It is the general rule that legacies bear interest from one year after the death of the testator. If the executors were unable to invest the funds, or were unable to invest them at six per cent, they would not be charged for interest they could not have the fund earn; but there was no testimony of this kind. The executors paid Malinda Brownfield six per cent interest for some time. I have therefore charged the executors with interest at six per cent, from September 11,1892, to August 31,1895, the date to which they charged themselves with interest in their account filed, which amounts to $2,769.</p> <p>The third exception is to the allowance of a credit of $200 for attorney fees paid to Edward Campbell, attorney for accountants. If the estate of Malinda Brownfield had been a separate estate, $200 would be a reasonable fee, but Malinda Brownfield is only a legatee of Isaac Brownfield,' deceased, and I cannot see that her legacy should be treated as a separate estate, but this legacy is a part of the estate of Isaac Brownfield, deceased. Exceptions have been filed to this being stated as a separate account and a separate estate, which exceptions I have sustained, and I have considered that in the Isaac Brownfield estate comprising the general executors’ account filed, and also this legacy of Malinda Brownfield, $300 is a reasonable fee, and at the same time, one fully earned by the attorney for the executors. There has been a great deal of time, work and responsibility required of the executors’ attorney, in this estate, and if this fee is somewhat above the minimum charges of the fee bill, it is justified by the litigation attending the settlement of the estate. I have placed the attorney’s fees at $300 in the Isaac Brownfield estate, including this legacy to Malinda Brownfield, and I have charged $100 to this estate and $200 to the executors’ account.</p> <p>I have next taken up the fifth.exception, which is that “the accountants are not testamentary trustees of the said Malinda Brownfield.”</p> <p>The will of Isaac Brownfield, deceased, bequeaths to Malinda Brownfield certain interest in his estate, and also a bequest of one sixth of the value of the coal, and appoints the accountants executors of the will. The accountants, being executors, occupy the position of trustees for the estate, but they are not authorized to manage or control, or act as trustees for Malinda Brownfield, as they are for Anna B. Crossland, and this legacy of Malinda Brownfield is part of the estate of Isaac Brownfield, and should be accounted for as a part of his estate. I cannot see, however, how it in any way prejudices her that a separate account of her legacy was filed, except to the cost of account, and the accountants themselves have charged no commissions in the account in the Malinda Brownfield estate, and I have considered and charged the attorney’s fees as part of the Isaac Brownfield estate. The accountants, in their account in the Malinda Brownfield estate, have termed themselves as trustees under the will of Isaac Brownfield, deceased, and the account shows that it is the legacy of Malinda Brownfield under the will of Isaac Brownfield, deceased, which is accounted for, and I have taken the account as part of or supplementary to the executors’ general account in the estate of Isaac Brownfield, deceased.</p> <p>The court dismissed exceptions to the auditor’s report.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 275, Jan T., 1898, by Anna B. Crossland, from decree of O. C. Fayette Co., Sept. T., 1895, No. 44, dismissing exceptions to «auditor’s report. Exceptions to auditor’s report. The facts appear by the report of Brownfield’s Estate, Brownfield’s Appeal, ante, p. 151.. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Appeals, Nos. 23 and 274, Jan. T., 1898, by Malinda Brownfield, from decree of O. C. Fayette Co., Sept. T., 1895, No. 43, dismissing exceptions to auditor’s report.</p>

<p> Judgments—After-acquired real estate—Lien—Execution. </p> <p>Where neither of two judgments is a lien on land which is after acquired, the first levy of an execution has the first grasp on the fund raised by the sale of the land. If the first levy be made upon the junior judgment, it will have priority if the defendant make no objection, although such judgment is more than five years old, and no scire facias has been issued thereon.</p> <p>An execution on a judgment more than five years old, without preliminary scire facias, is not void, but merely irregular. Only the debtor can take advantage of the irregularity; another judgment creditor will not be heard.</p>

<p>Appeal, No. 170, Jan. T., 1899, by plaintiff, from decree of C. P. Fayette Co., No. 286, in equity.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of Reppekt, J., which was as follows:</p> <p>The Fayette Gas-Fuel Company was incorporated October 21, 1887, under the act of May 29,1885, providing for the incorporation and regulation of natural gas companies. This company, becoming embarrassed, its franchises and property were sold at sheriff’s sale and the purchaser, with others in 1892, reorganized the company under the name of the Fayette Gas-Fuel Company. It is the only company supplying natural gas within the borough of Uniontown. The company was incorporated for the purpose of producing, dealing in, transporting, storing and supplying natural gas. Uniontown and other points in Fayette county within convenient distance of the company’s lines are named as the places where gas is to be supplied to consumers. The principal business of the company is and has been the supplying of natural gas to its consumers as a fuel, and the company desired to confine its business exclusively to that purpose. To a greater or less extent, however, natural gas has been used as an illuminant by the customers of these companies since their organization, and this court, in the case of I. N. Hagan v. The Fayette Gas-Fuel Company, at No. 259, in equity, in the opinion filed July 14,1898, by Judge J. F. Slagle, has declared it to be the duty of the defendant to furnish its product for all purposes for which that product has been used heretofore.</p> <p>While some of the former officers and employees of the defendant company knew of the use of their product for light by consumers, yet the present officers of the company allege that they learned for the first time of the extent of the use of natural gas for domestic lighting in the trial of the Hagan case, the connections in most instances between the systems of pipe for lighting and heating having been made without their knowledge, the connections so made of which they were aware being few in number and restricted to locations not served by artificiar gas mains, such connections being permitted as a matter of accommodation to their customers.</p> <p>In the fall of 1896, the company began introducing the meter system, since which time the general rate to all consumers has been twenty-five cents per 1,000 cubic feet, with a discount for prompt payment. In the case of manufacturers where large quantities are used a different rate is given, but for domestic consumers the uniform rate has been as above stated, without regard to the purpose for which the gas has been used, whether for light or heat, and Avith a minimum charge of f 1.00 per month ’ to each consumer.</p> <p>At or about the time the meter system was adopted by the company, the Welsbach and similar burners were put on the market. Used through these burners natural gas was found to be an excellent illuminant, those of the witnesses Avho compared it to artificial gas testifying that it thus produced a light superior to that of the artificial product and much more economical in the quantity of gas consumed as compared with artificial gas burned through the ordinary burner.</p> <p>On September 21, 23 and 24, 1898, the defendant company caused to be inserted in the Daily News Standard, published in Uniontown, an advertisement, notifying domestic consumers of natural gas that after October 1, 1898, the rates for gas would be as follows : For heat, twenty-five cents per 1,000 cubic feet; for light, $>1.50 per 1,000 cubic feet; and requiring all consumers desiring to use gas for light to notify the company immediately that the light meters might be set. At or about the same time similar notices were mailed to the company’s customers. The plaintiff, a resident of Uniontown, saw the notice as published and also received one by mail. On or about October B, 1898, an employee of the defendant company notified the plaintiff orally that if he did not call immediately at the defendant’s office and make arrangements for using the gas for illumination the gas would be shut off, whereupon the plaintiff filed the bill in this case, alleging that the proposed difference in charge for gas used for illuminating and heating purposes is an unjust and unlawful discrimination, and an unreasonable regulation, not made in good faith, but for the benefit of other corporations; that the proposed action of the defendant would be a violation of the plaintiff’s rights and the defendant’s duties and would work a continuous and irreparable injury to the plaintiff, and praying that the defendant be restrained from shutting off plaintiff’s supply of natural gas and from any interference with the connection between its mains or supply pipe and plaintiff’s premises, which would prevent him from using natural gas for either heating or illuminating purposes, so long as the plaintiff continues to pay the usual rates charged generally for gas, without discriminating as to the use thereof for illuminating purposes, etc.</p> <p>Natural gas is delivered by the company to the domestic consumer at the curb, gas for all prxrposes being delivered at the curb through one and the same system of mains and service pipes and heretofore measured by a single meter. The application of the gas to different purposes is made by the consumer by a system of pipes constructed by him through which the gas passes after delivery at the curb by the company. The plaintiff contends that under these circumstances the company has no right to make the discrimination proposed in its prices, based upon the application made of its product by the consumer; that after passing from the mains of the company into the pipes of the consumer, it is the property of the consumer, to be used by him in such way and for such purposes as may best suit his needs, at a single rate for the entire amount used. While the “commodity” and “property” argument is ingenious and plausible it may be noticed in passing that it would be equally applicable in support of the position that it is the duty of the defendant to supply gas to the consumer without regard to the use made of it by the consumer, whether for heat or for light; yet the decision above referred to in the Hagan case, which declared it to be the duty of the defendant company to furnish gas for light, was not based even in part, upon that ground. If the argument is correct the application of natural gas to different purposes and uses is a matter entirely within the control of the consumer, with which a company chartered to produce and supply the product has, and can have, nothing to do, and any dictation or control of the use of the product by the company directly or indirectly, after purchase and delivery, by virtue of any act of assembly or otherwise, would be a flagrant and unconstitutional interference with the right of private property. In such a view of the case it would not only be unnecessary, but unlawful, for a natural gas company to set forth in its application for a charter the purposes for which it proposed to supply its product to consumers, for the consumer would have the sole right to determine the use to be made by him of the gas purchased. It is true, as stated by plaintiff’s counsel, that a natural gas company is not a supplier of nor dealer in heat or light, but it may be incorporated for the purpose of supplying gas for either, or both, or other purposes, or the corporation may determine the purpose for which it will furnish natural gas to consumers, and who doubts that it is not only the right, but also the duty, of a company incorporated for the purpose of supplying gas for light alone, or electing to furnish it for light alone, for instance, to restrict the use of its product by the consumer after delivery to and possession by the consumer? Otherwise the company would be under pain of forfeiture of its chartered privilege. We hardly think the property in, and the right to control natural gas, acquired by the consumer, after purchase and delivery to him by the company at the curb, even in the absence of any considerations relating to costs, expense of supplying, trouble of inspection and other kindred causes affecting the company’s interest, is similar in all other respects to that acquired in and over a pound of coffee or sugar after purchase from and delivery by the grocer, as argued by the plaintiff’s counsel.</p> <p>So far as concerns this case the defendant company may be regarded as incorporated for the purpose of supplying natural gas to consumers for heat and light.</p> <p>As a fuel its product comes into competition with coal, and in order to find a market for gas as a fuel the company must make such a rate that consumers, after considering the relative value and advantages and prices of the two fuels, may be induced to purchase gas to the extent of the business desired by the company. In fixing such a competitive rate the cost of supply to the company is not considered except in relation to the minimum rate at which gas can be profitably marketed. When profitable business can be obtained by a company furnishing gas as a fuel in competition with coal or other fuel the cost of the supply of gas to the company is not a factor in fixing the rate charged the consumer. The rate under such conditions is affected chiefly by the desire to obtain and retain business, the value, advantages or disadvantages, and prices of the competitive fuels, and it is made with a view of obtaining the greatest amount of profit which the conditions of the business legitimately will yield, and the same rule is followed in every other business and enterprise. The reasonableness of the rate does not depend upon the profits which the company may make, but upon what is reasonable to be charged the person making the payment in consideration of the benefits conferred. If in competition with coal at seven and one half cents per bushel, the present rate here, a sufficient number of customers could be obtained who, on account of the superior value and advantages of natural gas as a fuel, preferred gas at fifty cents per 1,000 cubic feet, that would be the rate for gas for fuel instead of twenty-five cents per 1,000 cubic- feet, the present price, without regard to the profits which the company might make. Nor would such a rate, under such circumstances, be an unreasonable regulation. It would be simply the application of a principle known and adhered to by every individual, firm or corporation that buys or produces and sells.</p> <p>Natural gas used for light takes the place of and is used in competition with refined petroleum, electricity and artificial gas. Burned through a Welsbach or similar burner the testimony is that it produces a light superior to artificial gas—about the best light he ever had, the plaintiff says. There is a wide difference between the value of the coal displaced by 1,000 cubic feet of natural gas used as a fuel, and the value of the carbon oil, electricity or artificial gas displaced by 1,000 cubic feet of natural gas used as an illuminant. Approximately the coal is worth twenty-five cents, and the carbon oil, electricity and artificial gas are worth respectively $1.50. The natural gas in both cases has been furnished heretofore for twenty-five cents, and the consumer for lighfihas had the advantage of the difference of $1.25. Assuming that the prices charged for oil, electricity and artificial gas are reasonable, is he entitled to it ? Or has the company a right to make and enforce a regulation that will enable it to ascertain the amount of natural gas used as an illuminant, and to charge a rate for the gas so used, determined by its value as an illuminant in comparison with and in competition with oil, electricity and artificial gas, or any other illuminant, and not by its value as a fuel in comparison with and in competition with coal ? The difficulty is occasioned by the fact that a single product, used for two different purposes and of sufficient quantity to supply both, com'es into competition with other products, used for these two purposes respectively, but of widely different values. The plaintiff contends that the defendant company should fix one uniform rate for its product, taking into consideration all the uses which render it desirable and valuable, and to which it may be applied, and that even if it should be permitted to make different rates for fuel and light, the present rates fixed by the company are so widely divergent as to be unreasonable and unjust.</p> <p>If a natural gas company incorporated for the purpose of supplying gas for light, or choosing to supply it for that purpose, were doing business in this place, under the evidence in this case $1.50 per 1,000 cubic feet could not be regarded as an unjust or unreasonable price for its product, its value being ascertained by a comparison with the prices and values of competitive illuminants. A similar company incorporated or choosing to supply gas for heat alone might at the same time sell its product for twenty-five cents per 1,000 cubic feet. May not a dompany authorized by its charter to supply gas for both purposes and which has, by its act, as this court has declared, so determined, do what a company incorporated for either purpose might do ? . . . .</p> <p>Holding then that the defendant company has the right to make one rate for its product for fuel and another rate for light, are the present rates unreasonable or unjust? No complaint is made as to the rate for fuel. As to the rate for light we think the answer is found in a comparison of the rate imposed with the rates charged for other illuminants, and which may be regarded, under the testimony, as reasonable. Tried by such a standard as heretofore shown the rate is not an unreasonable one. . . .</p> <p>It is also objected that the proposed regulation is an unjust discrimination between persons, and therefore unlawful, as where the company delivers 5,000 cubic feet of gas to one customer who uses it for light for which it charges $7.50 and to an adjoining customer the same amount of gas through the same pipe, same kind of meter, same inspection system, same kind of gas, in every respect the circumstances and conditions, which is used for heat, but for which the company charges only $1.25. The discrimination is more apparent than real. Are the circulnstances affecting the price of the product the same in both cases ? Suppose both should be deprived of gas and required to procure other means of heating and lighting; the one customer instead of natural gas uses oil, artificial gas or electricity. His light will cost him approximately $7.50. The other customer uses coal. It will cost him approximately $1.25. Wherein has injustice been done to either? Would not the discrimination be far more unjust if the same rate for gas were given to each ? The regulation and rates complained of operate on all alike. There is no preference between individuals or customers, and, in our opinion, the objection urged cannot be sustained.</p> <p>After a careful consideration of all- the evidence in the case our conclusion is that the motion to dissolve the preliminary injunction heretofore granted must be sustained.</p> <p>The court entered a decree dissolving the preliminary injunction.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 381, Jan. T., 1898, by defendant, from judgment of C. P. Lancaster Co., April T., 1897, No. 48, on verdict for plaintiffs.</p> <p>Assumpsit on .a policy of fire insurance. Before Brubaker, J.</p> <p>When William F. McSparran, one of the plaintiffs, was on the stand, he was asked this question by defendant’s counsel on cross-examination:</p> <p>“ Q. Did you furnish any other proof of loss arising out of this fire, to this company ? ”</p> <p>Objected to by the plaintiffs’ counsel.</p> <p>The Court: We would like to know the purpose of the offer.</p> <p>Mr. Hensel: To test the credibility of the witness. In order to impeach the credibility of the witness, I offer to prove that, at the same time he furnished this proof of loss, he furnished another proof of loss to this same company, averring that he had no insurance on other property which was insured and upon which he obtained an insurance.</p> <p>Objected to by the plaintiffs’ counsel.</p> <p>The Court: Objection sustained. Bill of exceptions signed and sealed. [1]</p> <p>The witness testified in chief:</p> <p>“ Q. Did you notify the defendant company in this case that you had taken out additional insurance upon the personal property covered by the policy issued by them, and, if so, when and how? ”</p> <p>Objected to by the defendant’s counsel.</p> <p>The Court: Objection overruled. Bill of exceptions signed and sealed.</p> <p>“ A. I notified them by letter.” [2]</p> <p>“ Q. You testified this morning, in answer to a question from Mr. Hensel, that you had held policies in this company for a period of thirty years. During that time, did you, from time to time, take out other insurance in other companies covering the same risk, which were covered by the policies issued by this company? ”</p> <p>Objected to by the defendant’s counsel as immaterial and irrelevant.</p> <p>The Court: Objection overruled. Allowed for the present. Bill of exceptions signed and sealed.</p> <p>“A. Yes. I took out other insurance.” [3]</p> <p>“ Q. During that period, who was the secretary of the company? A. Dr. H. E. Raub. Q. State whatever occurred between you and Dr. Raub, as secretary of the company, as to what notice was required by you to be given of additional insurance, when you took it out upon the same risk covered by the policy issued by the corporation defendant, and how often it occurred, as near as you can tell.”</p> <p>Objected to by the defendant’s counsel, unless it was in reference to this property.</p> <p>The Court: Objection overruled. Bill of exceptions signed and sealed.</p> <p>“ A. I met Dr. Raub on one occasion and told him that I intended to secure additional insurance on our stock of canned goods, as the amount their company allowed me to carry didn’t sufficiently protect us. I told him I had asked for $1,000 in the Firemen’s of Reading.” [4]</p> <p>“ Q. Give us the instance you can remember, and what was your practice of dealing with this company through the secretary? A. I intended to take out additional insurance in the Firemen’s of Reading and the Glens Falls of New York. Q. Give us the time. A. I can’t recollect the year; and I asked him if it was necessary that I should run to Quarryville to see him, which was nine miles from my home, every time I told him I wished to effect additional insurance and get his permission for me to have it. He said, ‘ Oh! no; just write me how much you want to get and the name of the company and the amount of the policies and the dates.’ Q. How often, in the course of your dealings with him, did you give him such a notice ? ”</p> <p>Objected to by the defendant’s counsel.</p> <p>The Court: Objection overruled. Bill of exceptions signed, sealed and filed for the defendant.</p> <p>“A. Well, I suppose I gave it to him every year for a number of years. Q. How did you doit? A. By letter. Q. Was the propriety of your conduct in this matter ever questioned by the company? ”</p> <p>Objected to by the defendant’s counsel.</p> <p>The Court: Objection overruled. Bill of exceptions signed and sealed.</p> <p>“A. I never'had any intimation from them that that was objectionable.” [5]</p> <p>“ Q. The notice you sent them this time, was it or not precisely in the same form in which you had given them notice before of additional insurance? ”</p> <p>Objected to by the defendant’s counsel.</p> <p>The Court: Objection overruled. Bill of exceptions signed and sealed.</p> <p>“ A. Yes, it was the same form.” [6]</p> <p>Mr. Hensel: I offer to ask the witness on cross-examination, and to prove by his answers, that, in the proof of loss prepared and furnished by him to this company for damage occurring out of this same fire, he represented there was no other insurance on certain machinery; whereas, there was other insurance on that machinery in another company, or two companies, and that he collected insurance from both companies on the machinery. This to affect his credibility.</p> <p>Objected to by the plaintiffs’ counsel.</p> <p>The Court: Objection sustained. Bill of exceptions signed and sealed. [7]</p> <p>In defense defendant’s counsel offered to prove by W. F. McSparran, called as if under cross-examination, that, at the same time, he had the property insured in this building as the property of McSparran & Company, upon which identical property he had taken out other and extra insurance in other companies, without notice to the Southern Mutual Insurance Company; to be followed by proof that, for such property, he presented proofs of loss to the Southern Mutual Insurance Company, in which he swore that he had no other insurance on the property covered by extra insurance in other companies at the same time; this for the purpose of testing the credibility of the witness.</p> <p>Objected to by the plaintiffs’ counsel.</p> <p>The Court: Disallowed. The witness is entitled to see the proofs of loss. Bill of exceptions signed and sealed. [8]</p> <p>Mr. Hensel: I offer to prove by the witness, W. F. McSparran, one of the plaintiffs, as ii upon cross-examination, and by submitting to him the proofs of loss on the building and machinery of McSparran & Company, destroyed in this same fire, that he presented to the Southern Mutual Insurance Company a claim or proof of loss embracing the engine, which he has already testified was not the property of McSparran & Company; to be followed by proof that, at the same time, he had insured this engine and other machinery in two other insurance companies, without notice to, or knowledge of, or consent from, the Southern Mutual Insurance Company.</p> <p>Objected to by the plaintiffs’ counsel.</p> <p>The Court: Objection sustained. Bill of exceptions signed and sealed. [9]</p> <p>Verdict and judgment for plaintiffs for $8,345. Defendant appealed.</p> <p>Errors assigned among others were (1-9) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 194, Jan. T., 1898, by defendants, from decree of C. P. Lancaster Co., Equity Docket No. 3, page 145, on bill in equity.</p> <p>Bill in equity to cancel tbe assignment of a mortgage. Before Brubaker, J.</p> <p>The Real Estate Guarantee and Investment Company (see next succeeding case) averred its incorporation by special act of the legislature of Delaware as tbe Sussex Land and Cattle Company; that by special act its name was changed to the Real Estate Guarantee and Investment Company of Delaware; that it was the owner of a certain bond and mortgage for $30,000 made by one Rheiner to Levi H. Miller, secured on lands in Lancaster county; that, without authority from the board of directors of the complainant corporation or its stockholders, the president and secretary of the corporation complainant assigned the bond and mortgage to Edward Dudley, of Camden, New Jersey, without consideration; that he subsequently assigned the bond and mortgage to the defendants Lippincott and Hoffecker, who were proceeding to foreclose the same in the common pleas of Lancaster county; that the defendants had no right or title to the ownership of the mortgage, and the complainant prayed that they be enjoined from further proceeding in the foreclosure, and that they be directed to assign the bond and mortgage to the complainant.</p> <p>The bill of complaint in this case contains the same averments, with the exception that the complainant averred that she was the owner of 25,800 shares of the capital stock of the complainant corporation, and as a stockholder claimed on behalf of the corporation the same relief which has already been mentioned.</p> <p>To both bills of complaint the defendants filed answers admitting the corporate existence and the ownership of the bond and mortgage for $30,000 at one time by the corporation, but alleging that the assignment was for a full and sufficient consideration, not in fraud of the rights of the complainant, but executed and delivered by the officers of the corporation pursuant to authority vested in them by the board of directors of the corporation.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was .the decree of the court.</p>

<p>Appeal, No. 195, Jan. T., 1898, by defendants, from decree of C. P. Lancaster Co., Equity Docket No. 3, page 141, on bill' in equity.</p>

<p>Contracts—Mutuality—Remedies—Equity—Sale of stocks and bonds— Prior contract.</p> <p>A subsequent sale and delivery of stocks and bonds to others, in disregard of a prior contract, is no defense to a bill for a specific performance, when the transferees are made parties, and the bill avers that they had knowledge of the prior contract.</p> <p>The principle that contracts must be mutual, must bind both parties or neither, does not mean that in every case each party must have the same remedy for a breach by the other, but that the contract is enforceable on both sides in some manner; not necessarily enforceable on both sides by specific performance.</p> <p>Contracts— Uncertainty.</p> <p>A contract for the sale of stocks, whereby the seller undertakes that all debts of the company shall be paid on the day of the transfer, and the buyer is to retain a sufficiency of the price to assure him that the company is free from debt, is not void for uncertainty in not stating the debts, where the amount to be paid is fixed and definite, since, if default is made in the payment, the amounts to be deducted can be shown.</p> <p>While the general rule in Pennsylvania is that a bill in equity will not lie for the specific performance of contacts for the sale of chattels, the rule does not apply where the articles sold are of such a nature that they cannot be purchased in the market.</p> <p>A contract for the sale and purchase of almost all of the bonds and stock of a railroad company for a sjjeeified price, with a further covenant that the vendor should pay certain interest and floating debt of the company and use his best endeavors to secure for the vendee the remaining bonds and stock of the company at the lowest price practicable, does not lack mutuality, and it may be specifically enforced in equity.</p> <p>Railroads—Purchase of stock of one company by another—Public policy —Act of April 23, 1861.</p> <p>A contract for the purchase by a railroad company of the stock of another company is not against public policy, where the two roads are not parallel or competing lines, as the Act of April 23,1861, P. L. 410, authorizes such purchases.</p>

<p>Appeal, No. 133, Jan T., 1899, by plaintiff, from judgment of C. P. York Co., on verdict for defendant.</p> <p>Assumpsit upon a judgment note alleged to be lost. Before Stewart, P. J.</p> <p>At the trial defendant produced a note which was identified by the subscribing witness as the note sued upon. This note is as follows:</p> <p>“$1,400 York, Pa., February 8, 1896.</p> <p>“ One year after date I promise to pay Melchoir Helzer the sum of fourteen hundred dollars, the same being purchase money for real estate this day conveyed, without defalcation, for value received, with interest at 3 per cent, from April 1st. 1896. And I hereby authorize the prothonotary of York county to enter, or any attorney of any court of record, to appear for me and confess judgment for above sum, interest and cost and release of errors, and hereby waive all stay of execution. And further I do hereby agree that all my estate and effects, without exception or exemption, shall be subject to levy and sale in execution thereof to an amount sufficient to satisfy said judgment, hereby waiving and relinquishing all benefit of any law exempting such estate and effects, or any part thereof, from such levy or sale. And further I hereby waive and dispense with an inquisition and condemnation of all my real estate, and agree that the same shall be sold upon a writ of fieri facias, or any other writ that may be necessary for that purpose, and I hereby agree in default of payment of this note when it becomes due to pay 5 per cent additional for attorney’s fees for collection.</p> <p>“ Witness my hand and seal this 8th day of Feb. A. D., 1896.</p> <p>“ Witness:</p> <p>“C. F. Keech.</p> <p>[Seal] Hehbbb [Seal] [Seal.]”</p> <p>The defendant and his wife testified that the note was in the possession of the defendant at tbe time of his father’s death, on May 8, 1896, in his trunk, and the defendant further testified that shortly after his father’s death he took it to the office of William A. Miller, Esq., one of his counsel, in whose possession it remained up to the time of the trial. In this he was corroborated by Mr. Miller, who testified that the defendant brought it to his office on May 12, four days after the death of the decedent. It was further shown that the note*was canceled after that date by the direction of the defendant’s counsel.</p> <p>Plaintiff proposed to prove by herself and others, first that defendant in the lifetime of Melchoir Helzer threatened that if he could get hold of anything that belonged to the old man, he would keep it, or words to that effect; and also to prove that on Friday morning shortly after the suicide of Mel-choir Helzer, the defendant was in the room in which the body lay, and in which the chest was, in which Melchoir Helzer’s papers were kept, for a half hour or more; that on the Monday following he was also in the house, and that on the Tuesday following he made a complete search of the house from cellar to garret; for the purpose of showing the animus of the defendant towards his father and the expressed determination to keep what he might get of his, and to show the opportunity which he had for getting the note in suit.</p> <p>This is offered in connection with the other evidence, of the loss of the instrument, and to show the plaintiff’s right to recover.</p> <p>Objected to by Mr. Niles, of counsel for defendant, as not proper legal evidence for the purpose offered, or for any purpose for the plaintiff in this stage of the proof; that there being no proper legal evidence in the case of the cause of action, this evidence is irrelevant and immaterial; that the plaintiff having refused to offer in evidence the note in suit, proved by her witnesses to be such, which is here and in her power to offer, the evidence in regard thereto, or the possession thereof, is irrelevant and immaterial, misleading and improper.</p> <p>The Court: I will overrule the offer as not evidence in chief. If evidence at all, it will be evidence in rebuttal, after note is offered by defendant, if that should be done. Exception for the plaintiff, and bill sealed by order of the court. [3]</p> <p>Defendant offered in evidence paper marked “A” which was produced by him, and identified by the plaintiff’s subscribing witness, C. F. Keech, as the note upon which this suit is brought; for the purpose of sustaining the issue on the part of the defendant, and showing the discharge of the indebtedness evidenced by that note.</p> <p>Mr. Wanner, of counsel for plaintiff: The offer is objected to as inadmissible for the purpose stated, or for any purpose. The instrument offered has not been properly or sufficiently proved to be the one in suit; and it has been specifically proved that it contains material alterations to the prejudice of the plaintiff, and to the benefit and advantage of the defendant, which have been put upon it since it was delivered to the plaintiff’s intestate, and which, under all the evidence, appear to have been placed upon it while it was in the defendant’s own possession ; that the evidence already admitted shows that the payee. in this note died on May 8, 1896, and the note itself did not fall due for a year from its date. The evidence also shows that no payment has been made to the administratrix of this note, nor has she delivered it to the defendant or any one else. The evidence does not disclose the fact that this paper to-day comes from the legal possession of the defendant, William P. Helzer, who is competent to prove the present possession; and it is therefore not admissible as a paper coming from him to raise any presumption of payment, or extinguishment of the debt in any form. Inadmissible for any purpose.</p> <p>The Court: Do you offer more than the face of the note, Mr. Niles?</p> <p>Mr. Niles: No, sir.</p> <p>Mr. Wanner: It is specially objected to tbe offering of the face of the note, because on the back of it is an indorsement prejudicial to the plaintiff, and which would necessarily go to the jury, if the face of it were offered.</p> <p>The Court: I will admit the offer of the face of the note. The indorsement on the back of it is not offered or admitted, and cannot he considered by the jury as evidence for the defendant. Exception for the plaintiff, and bill sealed by order of court. [4]</p> <p>Mr. Niles proposed to prove by the witness on the stand, William A. Miller, Esq., that this note, “A,” was delivered to him by his client, William P. Helzer, some time shortly after the death of Melchoir Helzer, and that it has been in his possession ever since; that on or about May 12, William P. Helzer delivered to him this note, “A,” and that it has been in his, the witness’s, possession up to the time of this trial, when he handed it to the defendant, who produced it in court; that it has been in the possession of the witness or of the defendant ever since; and, further, that shortly after the institution of this suit, and before the first trial, the witness, with the defendant, produced this note in Mr. Niles’s office, and that upon the instruction of Mr. Miller and Mr. Niles, as his counsel, William P. Helzer ran his pen through the name, for the reason that he was instructed that he could not destroy the note, as it might be required for evidence, and that he should cancel his name, as it might be lost, or get out of his possession and he used against him; for the purpose of showing the possession of the note by the defendant as here produced, and the circumstances of the cancelation of the signature.</p> <p>Objected to by Mr. Wanner as not the best evidence of possession, or proper evidence of possession, the defendant himself being in court, and a competent witness to prove possession at the time it was offered, and to prove possession by his counsel; and the offer as made does not establish legal possession on the part of William P. Helzer of that paper. Objected to as inadmissible for the purpose offered.</p> <p>The Court: I will admit the offer and give the plaintiff an exception. [5]</p> <p>Mr. Niles: We offer to prove by the defendant that at the time of his father’s death he had in his possession at his house —the witness’s house—this paper, “ A,” and has had it continually in his possession, or in the possession of his counsel for him up to the present time; for the purpose of sustaining the issue on the part of the defendant, and showing that the obligation evidenced thereby is discharged.</p> <p>Objected to by Mr. Wanner as inadmissible for two reasons: first, because the witness is incompetent to testify to anything except what occurred immediately after and since his father’s death; and, second, because the paper itself and the other evidence offered here by the defendant so far is not evidence of payment; it raises no presumption of payment, and this offer is therefore inadmissible.</p> <p>The Court: The question is whether or not you can prove what occurred at the time of the death.</p> <p>Mr. Wanner: Yes.</p> <p>The Court: It certainly does not mean before. I will admit the offer. [6]</p> <p>Mr. Wanner proposed to prove by Ella Faust, the witness on the stand, that about the beginning of 1895, in a conversation with the witness, William Helzer made use of the following language, in the presence of the husband of the witness also. He said, “ Smalls had given a raise of a cent on a barrel; because his father did not give him the benefit of that cent right away, he was mad at his father, and said, ‘ He won’t make anything off me by being so damned' stingy, because,’ he said, ‘ many a crooked piece I could use, and many a cracked hoop I can put in a barrel; and, if it don’t suit me, I will chop it up.’ And he did say, ‘ I will get even some day; ’ and he said, ‘ Never mind, I will get my hands on him some day; and what I get my hands on it will be mine, then I will fool him,’ or words to that effect; ” for the purpose of showing the animus of the defendant toward his father, and his intention to obtain and keep anything that he might be able to .get.</p> <p>This is offered in rebuttal of the testimony of the defendant, which was offered to show payment and satisfaction of the note, and to show rightful legal possession of it.</p> <p>Objected to by Mr. Niles as not proper legal evidence for the purposes offered, or any of them; that the purpose to show animus is an illegal one; and that the whole offer is too remote and indefinite to be admissible, and is irrelevant, immaterial and misleading.</p> <p>Mr. Wanner: Plaintiff also offers to follow this testimony by evidence that the defendant on the day of his father’s death, and on the second day following it, was on the premises in the room where the chest was kept in which Melchoir Helzer’s papers were contained, and that on Tuesday following his death he made an extended search throughout the entire house; to show his opportunities for obtaining possession of this note in suit.</p> <p>Mr. Niles: The same objections are renewed.</p> <p>The Court: I will overrule this offer, and give the plaintiff an exception. [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (3-7) rulings on evidence, quoting the bill of exceptions.</p>

<p>Petition for reargument.*</p> <p>The petition for reargument was as follows :</p> <p>The petition of Sarah Leaman, who was a devisee of Christian H. Lefevre, deceased, respectfully represents that the account of the executors of said testator’s will was filed in the office of the register of Lancaster county, on February 14, 1891, and was presented, read and confirmed nisi on March 17,1891, and subsequently was confirmed absolutely, without any exceptions being taken or filed thereto; that according to said account, as subsequently modified, the entire balance required to pay all the debts of said Christian H. Lefevre, collateral inheritance tax and funeral expenses, was about $801.98, for which amount the farm devised to Mrs. Sarah Leaman by the will of said Christian H. Lefevre was mortgaged by his executor, in accordance with his will; that, on June 5,1893, more than two years after said balance was fixed and determined, said mortgage executed and said account confirmed absolutely, George Witmer filed a petition in the said court to compel Franklin P. Lefevre, trustee under the will of Christian H. Lefevre, deceased, to render his account, to which the said Franklin P. Lefevre filed an answer, in which proceeding depositions were taken and the rule granted in said case was discharged September 23, 1893, and an appeal to the Supreme Court of Pennsylvania taken by said petitioner was non-prossed on June 11,1896 ; that, on October 16, 1893, George Witmer also presented a petition to the orphans’ court of Lancaster county, asking for the appointment of an auditor to report distribution in said estate ; that D. G. Eshleman was appointed auditor, in pursuance of said petition; that he presented his report December 9,1893, to which exceptions were taken, and, by an opinion filed by the said court November 17,1894, a decree was entered, confirming the said report absolutely; that, on November 30, 1894, an appeal to the Supreme Court was taken in said case to January term, 1895, No. 128, and the decree of the orphans’ court was reversed; whereupon, on January 6, 1896, A. F. Hostetter was appointed auditor to restate the account of the said executor, in accordance with the opinion of the Supreme Court; that, by subsequent appointment, the said A. F. Hostetter was appointed to ascertain and report what amount of money was required to discharge all the liabilities of the said estate, to report the value of the real estate devised to your petitioner, and whether a sufficient sum could be borrowed on a mortgage on the property s<? devised to her to meet and discharge all such liabilities of the estate of the said Christian H. Lefevre; that, subsequently, a decree was entered by the orphans’ court of Lancaster county, directing the executor of the said Christian H. Lefevre to mortgage the propert}'- so devised to your petitioner for an amount exceeding $7,000, and far exceeding in value all of your petitioner’s devise; that the said report of said A. F. Hostetter, auditor, and the decree of the orphans’ court of Lancaster county, directing the mortgaging of said premises devised to your petitioner, all purported to be founded upon the opinion of your honorable court in the case of Witmer’s Appeal, Christian H. Lefevre’s Estate, to January term, 1895, No. 128, in which proceeding your petitioner was not heard, and of which she had no notice; that the said judgment of your honorable court, in the opinion and decree reversing the orphans’ court of Lancaster county, did your petitioner great injustice, and, as she believes, was made under a misapprehension of the facts, and without any notice to your petitioner, although, as she has shown, affecting her estate.</p> <p>Wherefore, and for divers other causes appearing in the said appellant’s paper-hook herewith submitted, your petitioner prays for a reargument of the said case of George Witmer’s Appeal, in the estate of Christian H. Lefevre, in the Supreme Court of Pennsylvania, eastern district, to January term, 1895, No. 128.</p>

<p>Street railways—Motor-power company—Lease—Gonstitutional law— Act of March 22, 1887, section 1, clause 8.</p> <p>Clause 8 of section 1 of the Act of March 22,1887, P. L. 9, entitled “ An act to provide for the incorporation and regulation of motor power companies for operating passenger railways by cables, electrical or other means,” which authorizes motor power companies “to lease the property and franchises of passenger railways which they may desire to operate, and to operate said railway,” is not unconstitutional, as the title of the act is broad enough to cover the power conferred in the clause.</p> <p>Street railways—Power to lease—Act of March 22, 1887.</p> <p>Under clause 8, section 1, of the Act of March 22, 1887, P. L. 9, which authorizes motor power companies to lease the property and franchises of passenger railway companies, the latter companies have the implied power to lease their roads to motor power companies, as without it the grant in the act would be nugatory.</p> <p> Gonstitutional law—Statutes—Re-enactment. </p> <p>The constitutional mandate as to revival, amendment and extension of acts by re-enactment at length applies only to express amendments, and does not affect those which are merely incidental to the passage of other acts, complete and valid in themselves.</p> <p>Street railways—Power to lease—Act of May 14, 1889.</p> <p>A street railway company incorporated under the Act of May 14, 1889, P. L. 211, may, under the act of March 22, 1887, lease its road to a motor power company, because the former act, containing no express prohibition of the power to lease, does not, by implication, repeal the implied power conferred by the latter act.</p> <p>Corporations—Organization — Recording certificate—Street railways — Passengers—Negligence—Action in tort—Contract—Lease.</p> <p>In an action against a corporation for damages for a tort committed while acting as a corporation, the validity of its incorporation cannot be impeached, and therefore plaintiff, in a suit against a street railway company which had leased its road to a motor power company, has no standing to aver that the motor power company was not a legal corporation by reason of its failure to record its certificate according to the provisions of the act of March 22, 1887, and that therefore the lease was void, and the street railway company liable.</p> <p> Railroads—Lease—Negligence. </p> <p>Where one railroad company leases its road to another in pursuance of legislative authority the lessee steps into the place of the lessor, and is alone liable for all negligence in the operation of the property leased.</p>

Appeal, No. 25, May T., 1899, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1897, No. 59, on case tried by tbe court without a jury. Assumpsit to recover an amount claimed to be due for the maintenance of insane patients. The case was tried without a jury before Simonton, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was in finding for plaintiff.

Appeal, No. 28, May T., 1899, by B. F. Todd et al., from order of C. P. Dauphin Co., June T., 1894, No. 310, dismissing exceptions to auditors’ report. Exceptions” to report of auditors, James H. Stranahan and Albert Miller, Esqs. The facts appear by the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to auditors’ report.

<p>Appeal, No. 23, May T., 1899, by defendant, from order of C. P. Dauphin Co., Commonwealth Docket, 1898, No. 562, on quo warranto.</p> <p>Quo warranto. Before McPherson, J.</p> <p>The suggestion for quo warranto was as follows:</p> <p>And now, July , 1898, comes Henry C. McCormick, attorney general of the commonwealth of Pennsylvania, into court, and gives the court here to understand and be informed, to wit: that on May 26, 1893, a corporation, by the name, style and title of “The Electric Light, Heat and Power Company, of Gettysburg,” was created under the provisions of the “ general corporation act of 1874” and the supplementary act of May 8, 1889, for the purpose of supplying light, heat and power, by means of electricity, to the public in the borough of Gettysburg, and to such persons, partnerships and corporations therein or adjacent thereto as might desire to use the same; that after-wards, on or about January 28,1896, certain judgments in favor of Adam Ertter and John A. Livers, as plaintiffs, were entered by confession against the said “ The Electric Light, Heat and Power Company, of Gettysburg,” in the court of common pleas of Adams county, upon which said judgments, writs of fieri facias were then and there issued and returned by the sheriff of said county “ nulla bona; ” that afterwards, on or about June 29, 1896, alias writs of fieri facias were issued upon said judgments, and the sheriff of Adams county was directed by the plaintiff to levy “ on all the property, rights and franchises of the defendant corporation and sell the same as a whole, subject to a mortgage for $12,000, recorded in said county in mortgage book L, p. 233, although no previous demand had been made at the principal office of the said corporation or of the president, treasurer, secretary or any other chief officer thereof having charge of such office for the amount of such executions with legal costs, as required by the act of June 13, 1836, which said alias writs of fieri facias were nevertheless levied in accordance with said direction and the said writs returned with such levy indorsed but without any further proceedings being taken or had thereon; that afterwards, to wit: on April 10,1897, pluries writs of fieri facias were also issued upon said judgments, and without any other or further levy or proceedings thereupon, the property, rights and franchises of the said “ The Electric Light, Heat and Power Company, of Gettysburg,” were advertised by the sheriff of Adams county, and on May 1,1897, were sold to the said Adam Ertter and John A. Livers for the sum of $510, and in pursuance of such sale a deed for the said rights and franchises was on June 22,1897, executed and delivered by the said sheriff to the said purchasers; that afterwards, to wit: on February 2, 1898, the said purchasers, claiming to act under the provisions of the act of May 25, 1878, entitled “A supplement to an act entitled ‘An act concerning the sale of railroads, canals, turnpikes, bridges and plank roads,’ approved the 8th day of April, 1861, extending the provisions of said act to coal, iron, steel, lumber or oil or mining, manufacturing, transportation and telegraph companies in this commonwealth,” executed and filed in the office of the secretary of the commonwealth at Harrisburg, a certain certificate purporting to be a certificate of reorganization under the provisions of the said act, and by virtue of said alleged sale and such certificate of reorganization the said purchasers now claim to have and possess all the corporate rights, privileges and franchises of the said “ The Electric Light, Heat and Power Company, of Gettysburg,” and by reason thereof to be a corporation under the name, style and title of “ The Keystone Electric Light, Heat and Power Company, of Gettysburg, Penna.; ” that the alleged sale of the corporate rights, privileges and franchises of the said “ The Electric Light, Heat and Power Company, of Gettysburg,” not having been made in compliance with the act of June 13, 1836, relative to executions against corporations as hereinbefore suggested, was illegal and invalid, and did not operate to vest in the said purchasers airy right in or title to the corporate rights, privileges and franchises of the said corporation, or to vest in the said purchasers any of the privileges or benefits conferred upon the purchasers of corporate rights and franchises at judicial sale by the act of May 25, 1878, or any other act of assembly authorizing or permitting the reorganization of corporations upon a judicial sale of the corporate rights, privileges and franchises thereof; that-neither the said act of May 25, 1878, nor any other act, authorizes the reorganization of any corporation created under the “ general corporation act of 1874,” or its supplements, for the purpose of furnishing light, heat and power, or either of them, to the public by means of electricity, and that in so far as the said act or any other act purports to confer upon the purchasers of the corporate rights, privileges and franchises of any such corporation the right to be a corporation or to have, exercise and enjoy the privileges and powers conferred by the said act of May 25,1878, it is unconstitutional and void, in that no such purpose is set forth or expressed in the title thereof.</p> <p>Whereupon the said attorney general, on behalf of the said commonwealth, makes this complaint and suggests that the court do award a writ of quo warranto in due form commanding the sheriff to summon the said “ The Keystone Electric Light, Heat and Power Company, of Gettysburg, Penna.,” that it shall be and appear before the said court on a certain day certain to show by what authority it claims to have and use the rights, powers, privileges and franchises of a corporation.</p> <p>The court in an opinion by McPherson, J., entered judgment of ouster. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 262, Jan. T., 1898, by-defendants, from decree of C. P. Chester Co., in equity. Bill in equity for an injunction.

<p>Appeal, No. 181, Jan. T., 1898, by P. S. Newmyer, from order of C. P. Fayette Co., Dec. T., 1895, No. 245, refusing to set aside attachment under the act of 1869.</p> <p>Rule to set aside attachment under the act of 1869.</p> <p>The facts appear by the opinion of Mestrezat, J., which was as follows:</p> <p>This is an attachment issued under the Fraudulent Debt- or’s Act of March 17,1869, as amended by the Act of May 24, 1887, P. L. 197. The writ was issued October 11,1895, and made returnable the fourth Monday of October, being the twenty-eighth day. The writ was served by the sheriff the day it was issued and a return thereof was duly made and filed in the prothonotary’s office. The defendant on November 1,1895, while a rule to dissolve the attachment was pending, filed a motion to quash the attachment “ for the reason that it was not made returnable to the first return day after the issuing thereof.” This motion is based upon the 2d section of the act of March 17, 1869, which provides that “ every such attachment shall be made returnable on the first return day of said court next after the time of issuing thereof.” The Act of May 24, 1878, P. L. 135, as amended by the Act of June 11, 1879, P. L. 125, provides that “ the several courts of common pleas of this commonwealth are hereby authorized to direct, by rule or standing order/ that all writs issued for the commencement of actions, all writs of scire facias to revive judgment and continue the lien thereof, and all other writs of scire facias, writs and process of every kind, may, at the election of the party suing out the same, be made returnable on the first Monday of next term, or on the second, third or fourth Monday of any intermediate month.” Pursuant to the authority conferred by this act, Rule 35 of this court was made, which is as follows : “ All writs issued for the commencement of actions, all writs of scire facias to revive judgments and continue the lien thereof, and all other writs of scire facias, writs and process of every kind, may, at the election of the party suing out the same, be made returnable on the first Monday- of the next term, or on the first, second, third or fourth Monday of any intermediate month.”</p> <p>It will be observed that the next return day after the issuing of the writ in this case was the s.econd Monday (14th day) of October, and that one other day, viz : the third Monday of October, intervened between the issuing of the writ and the day it was made returnable. The position of the plaintiffs’ counsel is that the amended act of May 24,1878, repeals by implication the act of March 17, .1869, and that under the former act and our rule of court the plaintiffs could elect their return day, and, -therefore, had a legal right to make this writ returnable on the fourth Monday of October. The process issued under the act of 1869 is a writ for the commencement of an action, and therefore within the provisions of the act of 1878. The requirement of the act of 1869 as to the return day of the writ is clearly repugnant to the provisions of the act of 1878. In this respect both acts cannot stand, and, to that extent, the later repeals the earlier statute. We are therefore of the opinion that the plaintiffs could, at their election, make the writ in this case returnable the fourth Monday of October, although it was not the “ next return day after the issuing thereof,” and that the motion to quash for that reason must be denied. The defendant relies on Williamson v. McCormick, 126 Pa. 274, to sustain his position. That case arose in Luzerne county. The special act of May 25,1871, fixed the return days in that county. The court below quashed the writ because it was not made returnable to the next return day fixed by said act, as provided in the act of 1869. The act of 1878 was not called to the attention of the court, and if it had been possibly there would not have been a different conclusion; for so far as appears from the report of the case, and the paper-book of the plaintiff in error, the common pleas of Luzerne county had adopted no rule or order fixing return days pursuant to the act of 1878. Hence we do not think that Williamson v. McCormick, supra, rules the case at bar.</p> <p>The motion to quash the attachment is denied.</p> <p>Error assigned was the order of the court.</p>

<p> Partition—Equity—Parties. </p> <p>Where a tenant in common has filed a bill in equity for a partition, but has failed to join all the parties in interest, his vendee may file a bill in the nature of a bill of revivor, in which all such parties may be joined as parties defendant.</p> <p>Partition—Life estate—Act of April 5, 1842, section 9—Pleading.</p> <p>Under the act of April 5, 1842, a son who has obtained by conveyance from his mother an undivided interest in her life estate in real estate, has a standing to file a bill in equity for partition, and his right is not defeated by the fact that he has other interests in the land which are contingent.</p> <p>All the real estate held in common by the same title must be brought into one proceeding for partition if practicable, but the failure so to do cannot be taken advantage of by demurrer, as it is not a bar apparent on .the bill, either to the jurisdiction of the court or to the plaintiff’s right, but a matter of defense in abatement, and should be set out specially by a plea fulfilling the requirements of a plea in abatement.</p>

Appeal, No. 8, Oct. T., 1899, by Jane Warren, from decree of O. O. Westmoreland Co., Aug. T., 1897, No. 23, dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

Appeal, No. 12, Oct. T., 1899, by G. B. Richardson, from decree of C. P. Westmoreland Co., Feb. T., 1898, No. 556, overruling demurrer to libel in divorce. Libel in divorce. Before McConnell, J. Errors assigned were (1) in not sustaining demurrer; (2) in allowing libellant to amend.

Appeal, No. 69, Oct. T., 1899, by J. B. Green, from order of C. P. Cambria Co., sustaining exceptions to report of auditor.

Appeal, No. 101, Oct. T., 1899, by defendant, from decree of C. P. Cambria Co., Dec. T., 1897, No. 2, on bill in equity. Bill in equity to cancel a deed.

Appeal, No. 74, Oct. T., 1899, by-defendant, from decree of O. P. Forest Co., Nov. T., 1898, on bill in equity. Bill in equity for an account. The facts appear by the opinion of Lindsey, P. J., which was as follows: The plaintiff, David Mintz, for a period of about ten years prior to July 20, 1896, was engaged in a general mercantile business at Marionville, Forest county, Pennsylvania.

<p>Appeal, No. 216, Jan. T., 1899, by defendant, from judgment of O. & T. Lebigb Co., April T., 1899, No. 25, on verdict of guilty of murder of the first degree.</p> <p>Indictment for murder. Before Albright, P. J.</p> <p>At the trial it appeared that on March 3, 1899, the prisoner shot and killed Maggie Guth. The deceased had refused to marry the prisoner.</p> <p>The commonwealth offered in evidence the following letter:</p> <p>“ Cetronia, January 31, 1898. Dear Brother: As I thought it is best for me to leave Cetronia once or I might come in the biggest trouble that I ever was in all my life. So I wish you and none of my brothers and sisters and my father and mother shall not worry themselves about me for I am trying to strike a better country than this. I will not leave you know where I am until I have settled down once, so please don’t worry yourselves about me because why I leave is this trouble, is trouble one after the other there so many friends and some God damn suggers around there which have too much trouble with me and go and tell stories from me; and Maggie, my best friend in the world that I’d do anything in this world is going back on me. I would give my last drop of blood for her, but she is going back on me, and just for such God damn suggers as there are such a God damn son-of-bitch went to work and wrote a letter to Maggie’s father and mother that he would pitty Maggie if she got me for a man. If I could find that out who wrote that letter I would shoot the son-of-a-bitch in less time than half a day.”</p> <p>Defendant’s counsel objected as follows: We object to the letter because it is not signed; it is an anonymous letter. It is addressed to dear brother and is dated a month (year) or so before this occurrence, dated January 31, 1898.</p> <p>The Court: The objection is overruled; letter admitted; defendant excepts ; bill sealed. [4]</p> <p>The circumstances of the shooting are detailed in the opinion of the Supreme Court.</p> <p>The prisoner presented the following point:</p> <p>Under all the evidence the verdict cannot be guilty of a higher degree than murder of the second degree. Answer: Refused. [1]</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) above instruction, quoting it; (4) admission of letter as above, quoting it.</p>

Appeal, No. 128, Oct. T., 1899, by defendant, from judgment of O. P. Cambria Co., March T., 1898, No. 148, on verdict for plaintiff. Assumpsit for lumber sold and delivered. The facts appear by the opinion of the Supreme Court. Defendant’s points and the answers thereto among others were as follows: 8.

<p>Appeal, No. 164, Oct. T., 1899, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1898, No. 330, on verdict for defendants.</p> <p>Assumpsit for services. Before Barker, P. J.</p> <p>The facts appear by the charge of the court, which was as follows:</p> <p>The plaintiff in this case seeks to recover from the defendants a balance of some |1,500—I believe that includes interest—which he alleges to be due him for services rendered while working for them as a civil and mining engineer. You have learned that he was employed by these defendants for quite a number of years, dating from 1882 to 1894, or thereabouts, at the same time that he was working for other mining companies. He alleges that a portion of his services during those years remains unpaid for, and he has offered in evidence a statement of his account showing the balance claimed. The defendants answer and say that his claim was paid in full, that they had what amounted to a settlement in January, 1893, and that at that time everything that they owed him was paid. As evidence of that settlement they produce a bill made out by him, in his handwriting, reading as follows:</p> <p>W. H. Piper & Co., to L. MacDonald, Dr.</p> <p>For engineering for slope and surveying lines in 1891 and 1892,........$275</p> <p>For mine work in 1891 and 1892, and being in full for all work to January 1, 1893, . . . 600</p> <p>Total,........$875</p> <p>And then they produce a check, showing the payment of that claim. They had previously paid him $10.00 on January 1, 1892, and on October 24, 1892, $250, which, you will have discovered, was not credited to him on this bill. And then on February 13, 1893, which was two or three weeks after the date- of this bill, they gave him'a check for $615, and they say that this bill, which was rendered by him to them, stating that it is in full for all work to January 1, 1893, accompanied by his receipt on a separate statement for the same amounts to a settlement, and is in law a sufficient defense. These papers, taken together, furnish prima facie evidence of a settlement for all services to January 1, 1893.</p> <p>When a receipt is given in full for all demands to a certain date, the law considers it a settlement in full up to that time. It gives rise to the presumption that on that day the parties made a settlement of their accounts, and that the balance was paid in full. While that is prima facie evidence of settlement, it is susceptible of explanation, and while the law of this state seems to have been well settled, up until a very recent date, that when a receipt in full is relied upon by one party as showing that the claim set up by another has been paid and satisfied, it may be explained that he has not included a certain claim or the whole of it, that is to say, it is but prima facie evidence of a settlement, and that it is open to explanation by the party who has given it, and when sufficient explanation be given, showing that it was not a receipt in full, then it would be overcome, the only exception being where the explanation showed that the receipt was given in payment of a disputed claim, upon an actual settlement of mutual accounts or unliquidated damages. Then the receipt is conclusive, and can only be overcome by evidence of fraud, accident or mistake. [But by a recent decision of the Supreme Court the law seems to have been somewhat modified, and the rule as to the amount of evidence required to set aside a receipt in full seems to have changed so as to place more of a burden on the person attacking it than heretofore,] [1] and we will read that to you, because it is in the exact language of the Supreme Court, as announced within the last two or three months : “ Of course it must be assumed that the receipt was given for some purpose, and that it was not a mere meaningless paper. As Frederick Rhoads is dead and Oliver S. Rhoads is incompetent as a witness, and no one was examined who was present when the receipt was given, we must ascertain the legal effect of such a paper when given in evidence without explanatory testimony as to what took place when it was executed and delivered. , Even receipts in full are not conclusive and are open to explanation, but where there is no explanatory testimony they have a defined legal meaning.” *</p> <p>If there was no explanatory testimony in this case and we had nothing but the plaintiff’s bill and the receipt to testify, the legal meaning of that receipt would be that they had a settlement, and the balance was paid in full. Then the opinion quotes another case, which quotation I will read: “ A receipt in full was produced in evidence which receipt was disregarded by the referee without any satisfactory finding of either law or fact in regard to it. While a receipt of this kind is not conclusive, yet it is always prima facie evidence of a settlement, and should only be set aside for weighty reasons, especially after a lapse of years, and the reasons should be fully and clearly stated. Fraud, accident or mistake would be sufficient to avoid such an instrument, but in such case the cause of avoidance should clearly appear. We have thus a clear and well-defined expression as to the legal effect of such an instrument, and it is authoritatively ruled that it cannot be set aside except for weighty reasons, such as fraud, accident or mistake, and such causes for disregarding them must be made to appear distinctly. Such receipts then are placed in the same category as other written instruments which are made depositories of the solemn agreements of contracting parties.” *</p> <p>Now, the explanation of the circumstances by means of which the plaintiff undertakes to overcome the receipt are these: that in October, 1892, a fire destroyed his office and his books of account; that he was employed as a mining engineer for a number of miners, persons wanting to ship coal, and, as he expressed it on the witness stand, he was overwhelmed with business in protecting their interests, and this was rendered difficult by reason of the fact that his papers relating to these mines had been destroyed; and that when the demand came to him, as evidenced by the letter which you will have out with you, that he should render a statement of his account, the letter of January 12, 1893, in which the defendants say to him that they respectfully request him to approximate in some manner the amount that they may owe him, which amount shall be a final settlement of the account, that he made out this bill which is said to be in full, without having the data from which to make it out, except, as he says, data was furnished to him by them and which is evidenced, he says, by the statement attached to his bill.</p> <p>They deny that this was rendered him before he made this bill out. Mr. Piper testified that it was rendered afterwards,</p> <p>* Harris v. Hay, 111 Pa. 565. and therefore they say it did not furnish to him the data to make out his bill. That would be an important part of his ease, of course, that he made out the bill from data furnished by them. He says that was their figuring, and that he did not include the items he is claiming for here. That would be a question for the jury in this case. He says that he made out this bill, and he says that he overlooked a number of items to which his attention was not called, because of his want of recollection. Now, it will be conceded at once that if I give you a receipt in full of my account and I claim afterwards that I omitted some items of that account, and there is no explanation of the circumstances, it would be very dangerous to permit a recovery in a case of that kind; and it probably would not be permitted where, simply from want of recollection, or from carelessness, or through some neglect, a receipt in full would be given, or by mere neglect items would be left out; but in this case it is alleged here is an explanation and a reason why these items were omitted.</p> <p>Now, the defendants say that, not only do they produce the receipt which is prima facie evidence of a settlement, but that they have produced other evidence in the case which, taken with the bill and receipt, is conclusive of a settlement, and that no sufficient proof is adduced by the plaintiff to overcome the conclusiveness of a settlement. They claim that they demanded and he rendered them an account, and that they paid it and he gave them a receipt in full; that a year afterwards he rendered them an account for the year 1898, and I believe he signed the receipt of Jairuary 9, 1894; he signed a receipt for check 36854 in full of the account up to January 1,1894; that subsequently, while he was in their employ, he rendered them no less than fifteen different statements of his account from time to time, which they paid, and no claim was then set up by him for any services rendered prior to the date of this check; ■ and that that should be sufficient, taken in connection with the receipt itself, to satisfy this jury that was a settlement in full. And this is very strong evidence for you to consider. You have heard the arguments of counsel, and you will consider the improbability of any account lying back all these years that was not settled at the time of this settlement and the rendering of these statements, and he obtaining checks from them in the mean time. You have heard, on the other side, the arguments of the counsel for the plaintiff as to the reasons for that; that he was busily engaged gathering up the data from the sources he has mentioned, by which he could make out this account.</p> <p>[Now, we say, as to the measure of proof required in this case more than in all others, that this receipt which is prima facie evidence of settlement should only be set aside for weighty reasons.] [2] As the plaintiff said to you that these items were omitted from his account by mistake, and that that mistake was induced by the fact that he was unable at the time to obtain the data upon which to make out the account, including those items; but whatever are the reasons, has he given you sufficient reasons for his allegation that he could not put them in the account ? It is no evidence in this case of a mistake that his claim was, or is alleged to have been, larger than the amount of the payment by which it was settled. That does not amount to an explanation of the reason why it was not included.</p> <p>Defendants’ points and the answers thereto among others were as follows:</p> <p>1. Where a receipt in full is set up as a defense in an action for professional services, and all the services claimed for were prior to the date of the receipt in full, and where the conclusiveness of the receipt is affirmed by the defendant and denied by the plaintiff, and neither party is corroborated .by any evidence, the receipt is conclusive against the plaintiff’s right to recover. Answer: That point is affirmed, but it is done under the facts of the particular case illustrating the principle we have already stated to you, and that is this : If I give you a receipt in full of all demands to date and either of us comes into court and says that it is not a receipt in full, that at the time we made that receipt we agreed it should not be in full, then I assert one thing, that it was to be in full, and you assert that it was not, then of course the evidence is evenly balanced and the receipt must control, and it cannot be set aside. [3]</p> <p>2. Where a receipt in full is offered it is prima facie evidence of settlement and cannot be set aside except for weighty reasons, such as fraud, accident or mistake; and such causes for disregarding it must be made to appear distinctly. Answer: That point is affirmed, as we have already instructed you. [4]</p> <p>3. The state of the party’s finances at the time he gave the receipt in full is not material as to the imposition or fraud practiced in procuring the receipt. Answer: That point is affirmed. [5]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (1-5) above instructions, quoting them. •</p>

Appeal, No. 94, Oct. T., 1899, by defendant, from judgment of C. P. Venango Co., April T., 1897, No. 64, on verdict for plaintiff. Assumpsit upon a promissory note. Before Cbiswell, P. J: The court charged in part as follows: [The plaintiff in this action seeks to recover the amount of a note for $1,000, which she alleges the defendant executed and delivered to her on or about June 22,1895.

<p>Appeal, No. 231, Jan. T., 1899, by plaintiff, from judgment of O. & T. Northumberland Co., Dec. T., 1898, No. 3, on verdict of guilty of murder.</p> <p>Indictment for murder. Before Savedg-e, P. J.</p> <p>At the trial it appeared that on October 10,1898, Daisy Smith, a girl about sixteen years of age, residing in Lower Augusta township, was shot and killed on her father’s farm. Suspicion was directed toward the prisoner, the son of a neighboring farmer. Two of the neighbors went to defendant’s home where they found him washing a shirt bespattered with blood.</p> <p>Counsel for the commonwealth offered to prove by J. L. Grimm that he, in company with Miles Dougherty, called at the county jail; that the prisoner was brought into the jail office and that they there had a conversation with him and that he confessed to the commission of the crime.</p> <p>Counsel for the prisoner objected, because when the prisoner was interrogated he had been but recently placed under duress without process of law; that he was under illegal restraint, and had not been informed what his rights were jinder the circumstances ; that he had no opportunity of procuring counsel or advice; that while he was yet subjected to the fear and terror incident upon his arrest and incarceration in the middle of the night, and before he had time to acquire even proper composure, in ignorance of his rights, he was, with undue haste, visited by the officers of the law, who immediately informed him who they were, thus being placed in a situation which must necessarily have terrorized him, which circumstances were followed by an artifice and trick by which he was induced to make a statement which they allege to be a confession, and by reason of the artifice and trick might have been induced with the hope of some benefit, or at least while he was under the influence of fear, to make statements which it is proposed to use to his injury; and because the evidence offered is incompetent and illegal.</p> <p>The Court: Whether the trick in this case was such as to excite hope or fear cannot be known until we hear what it was. We must know that before we can rule on this proposition.</p> <p>Exception for prisoner and bill sealed.</p> <p>The Court: I suppose it is of very little consequence which side finds out what the trick was.</p> <p>Mr. Mahon, of counsel for commonwealth: Go on and state what you said to the prisoner on the evening of October 11, without giving what he said to you. What did you first say to him'when he was brought into the office ?</p> <p>The Court: That he has explained to us already, and after he liad explained what he had said, leading up to the confession, Mr. Oram asked whether he had resorted to any trick, and he said he had.</p> <p>“ Q. Go on and state what you characterized as a trick on your part on that Occasion. A. Why we discovered that the knife was bought down at Mrs. Bohner’s, but we could not get any trace of who bought on the Monday previous, being the last knife of the kind that she had, but we also found that she got her knives from ’ Mr. Ilackett in town. ... I went into Iiackett’s store and asked him for a pocket knife of the kind that Mrs. Bohner got; and he said she bought three, or four different lands, and he asked what kind I had reference to and I said I would like to get a two-bladed barlow, both at one end, and he said, ‘ I have some of that land,’ and he got one; and I says, ‘I would like to borrow this for a few days and if I don’t bring it back I will pay for it,’ and I put it in my pocket and went to the jail; and after talking a while I reached down in my pocket and pulled this out and I said, ‘ Ed. I found your knife.’ ”</p> <p>The other material facts appear in the opinion of the Supreme Court.</p> <p>Mr. Oram: “ Q. Then the statement he made was induced by that? A. Yes, sir; in that way.”</p> <p>The Court: Is that all, by way of trick ?</p> <p>“A. I gave it to the prisoner and he examined it. He asked, ‘ Where did you get it ? ’ I said, ‘ Just where you put it,’ and he asked me the second time and I gave him the same answer, and he asked the third time, ‘I would like to know where you got it; ’ and I says, ‘ Nobody knows better than you; I got it just where you put it,’ and then he began and told me where I got it.”</p> <p>Counsel for the prisoner renews objections previously made.</p> <p>The Court: We are of the opinion that we cannot say, as a matter of law, that the trick spoken of by the witness was calculated to produce such a state of hope or fear on the mind of the prisoner as would lead to an untrue confession. We therefore overrule the objection and admit the testimony.</p> <p>Exception for prisoner and bill sealed.</p> <p>“ Q. State whether or not what he said to you was reduced to writing. A. Yes, sir. Q. Was it read over to him after it was reduced to writing? A. Yes, sir. Q. Was it signed? A. Yes, sir. Q. By whom? A. Edward Cressinger. [Exhibit No. 2, February 9, J. F. G., shown witness.] Q. What is that ? A. It is the confession of Edward Cressinger as to his connection with the murder of Daisy Smith.”</p> <p>Counsel for the commonwealth offer the confession in evidence.</p> <p>Counsel for the prisoner object, for the reason that the commonwealth has not shown the entire conversation that took place which led up to the production of this writing. We are entitled to all that occurred.</p> <p>The Court: They are entitled to everything. If there was anything preceding that, which I presume they are able to tell from the preliminary examination already, please bring it all out.</p> <p>Mr. Oram: “ Q. Go on and state all that occurred, which led up to this confession that you have in this writing? A. When I told him, ‘ Nobody knows better than you; ’ he says, ‘You must have found it at the apple tree where the wash bench stands ; ’ I said, ‘ Certainly, you knew where you put it.’ I looked at him straight and says, ‘ Ed., why did you do it ? ’ And just at that time Dougherty says, ‘Did you have a quarrel?’ And Ed. says, ‘Yes, she slapped me,’ and Dougherty kind of raised himself up, and said, ‘ I don’t want you to say another word, unless it is voluntarily, because anything you say we will use against you.’ Q. Is this confession in your handwriting ? A. Yes, sir, it don’t show it very plainly because I was kind of nervous when I wrote it.”</p> <p>Counsel for the commonwealth renewed offer to read the confession.</p> <p>Counsel for the prisoner objected, (1) because it appears from the testimony of the witness on the stand that he obtained this written statement by the perpetration of a double fraud. First, by showing a knife which he represented as belonging to the prisoner, and second, by claiming to have found it at the precise place where the prisoner left it, both of which assertions were untrue and false and calculated to induce the fear of the prisoner, he being then not under legal arrest by virtue of any legal warrant, but in the duress of another county official; (2) because the writing was not taken down by a competent party in a competent hearing, but was taken down by the party who perpetrated the fraud upon the prisoner, and needs his evidence, that it is a continuation of the fraud; (3) because' written statements so procured and written down as this was done, without opportunity to the prisoner to be advised as to his legal rights by competent counsel, keeping him in duress without a proper commitment, was such a violation of the prisoner’s rights as to render the prisoner’s confession inferentially void.</p> <p>The Court: Objection overruled and bill sealed for the prisoner. [5]</p> <p>Dr. G. H. Gerringer recalled for further examination.</p> <p>Mr. Mahon: “Q. You know Edward Cressinger? A. Yes, sir. Q. How long have you known him ? A. I suppose eight or ten years, anyhow. Q. How often have you seen him yearly during the last five years ? A. I have seen him quite frequently; I couldn’t say how often. Q. State whether or not he was in your employment. A. He worked on my premises, but I did not employ him. Q. Did you see him work on your premises ? A. Yes, sir. Q. What did he work at? A. He was cleaning up the garden. Q. Your garden? A. Yes, sir. Q. Plow did he perform that labor? A. Satisfactorily. Q. What other labor did he perform for you, if any? A. He helped my wife wash still, worked the wash'machine. Q. You saw him do that? A. Yes, sir. Q. How did he perform that labor? A. All right. Q. Do you recall any other labor that he did for you? A. He cleaned out my stables several times. Q. Plow did he do that? A. All right. Q. State whether or not he lived at your house when he worked for you. A. Yes, sir. Q. Did he take his meals there? A. Some of them at least. Q. Sleep there? A. No, sir. Q. Did you observe, during this time, his speech and conduct ? A. Yes, sir? Q. General deportment? A. Yes, sir. Q. You may now state, Doctor, whether you observed anything in his speech, conduct, labor and the manner in which he performed it, during all the time you have known him, which led you to believe that he was of unsound mind.”</p> <p>Counsel for the prisoner objected, because the question is put to the witness in his capacity as a physician, and because the circumstances narrated are not sufficient to qualify him as a witness.</p> <p>1899.]</p> <p>The Court: The witness is asked, not as a physician or expert, but as a layman or nonexpert, what his observation of the conduct of the defendant has been during the period of time he has been acquainted with him. We think it is admissible and will allow the question to be asked. The fact of his being a physician does not change the legal situation. Objection overruled and evidence admitted, to which the prisoner excepts and bill sealed.</p> <p>“ A. I did not.” [7]</p> <p>The prisoner moved to quash the venire because: (1) the venire and the array attached contains the names of jurors who are in attendance and who were not drawn from the wheel; (2) jurors were summoned who are not named in the venire; (3) names of jurors were drawn from the wheel who are not. named in the venire; (4) names of jurors were drawn from the wheel who are not summoned or in attendance; (5) jurors were summoned and are in attendance who were neither drawn from the wheel nor named in the venire; (6) the panel was not drawn, nor the jurymen named, summoned as required by law; (7) the venire is incomplete, imperfect, irregular and illegal.</p> <p>The Court: From the knowledge I have from the sheriff there is nothing here that would warrant the court in quashing the venire, or the array. The venire was properly issued, the precept was in form. There are some mistakes in both surname and Christian name, but we would have to have more than this before us before quashing the venire. We will therefore overrule the motion to quash and seal a bill for the prisoner.' [1]</p> <p>The prisoner renewed his motion to quash the venire as follows : and now, February 7,1899, it appearing from the examination of jurors on their voir dires that Martin K. Bachman was summoned and attended instead of W. K. Bachman, the juror drawn; that John Gribbons was summoned and attended instead of John Gibbons, the juror drawn; that Anthony Marchetty was summoned and attended instead of Tony Maretity, the juror drawn; and that George Mutchler was returned by the sheriff as drawn, and was summoned and attended, and it appears that John L. Mntchler was the name put in the wheel.</p> <p>The Court: There was a time and place for making this objection, at which time and place the proof of the alleged facts in the motion should have been furnished. The court is satisfied from the evidence, from what has transpired in the selection of a jury, and from the answers of the jurors who have answered the questions asked them, that there is no such person in the district from which W. K. Bachman was selected as W. K. Bachman and that M. K. Bachman was intended. Moreover, the challenge for cause was sustained and the prisoner cannot be prejudiced. It also further appears that there was no such person as Tony Maretity in the district in which that person is drawn and that Anthony Marchetty was the person named, and the challenge for cause was sustained in that case. The same is true in all other instances where mistakes have been made in the placing of the names of jurors in the jury wheel by the jury commissioners. Moreover, the prisoner is not deprived of any constitutional right, because there is in attendance enough jurors to constitute a legal oyer and terminer jury, the number ordered to be elected having been made exceptionally large to meet the contingencies such as have arisen in the selection of this jury. Motion overruled and bill sealed for the prisoner. [2]</p> <p>The panel having been exhausted, and the jury not completed, the court ordered a special venire to issue, directing the sheriff to summon from the body of the county ten persons qualified to act as jurors in our several courts.</p> <p>In accordance with the order of the court ten persons were summoned and came forward and were sworn on their voir dire.</p> <p>The prisoner objected to the issuance of a special venire, because, by reason of the illegalities, imperfections in the regular panel and array in the summoning of jurors not drawn, he had been deprived of his legal right of a full panel, duly drawn, summoned and in attendance, and cannot now have a constitutional trial, and the court is without authority under the circumstances to award such venire.</p> <p>The Court: Objections overruled and bill sealed for the prisoner. [3]</p> <p>The prisoner moved to quash the panel and array of the special venire returned by the sheriff, for the reason that the same was not summoned and returned in accordance with the command of his writ from the body of the county;</p> <p>The Court: Motion overruled and bill sealed for the prisoner. [4]</p> <p>The court charged in part as follows:</p> <p>It has not been contended, as you have heard by counsel for the defense, that the killing of this girl was not done by .Edward Cressinger, nevertheless it will be for you to find from all the evidence in the case whether Daisy Smith met her death at the hands of this defendant. That will be the first question for your determination, naturally, and as to that you have the confessions of the defendant supported by other facts and circumstances which you will remember and consider in determining the question. What those facts and circumstances were and what those confessions were, and when and how they were made, you will remember. That is, it is wholly unnecessary that I should refer to them further. [6] ....</p> <p>You will remember what the experts say as to the condition of this young man. It is admitted that physically, and if I remember correctly, the physicians so testify, he is rather a robust and well built lad. They have told what condition they found him in when they visited the jail a week or two ago. It is not my purpose to go into it in detail, although I have it right before me, because I am satisfied that you will remember what that testimony was. You will remember the testimony as to his sexual habits. It is contended that he was addicted to the practice of masturbation, and also that he was a sexual pervert, and what those terms mean was explained to you from the witness stand. It is contended that the unsound condition of his mind is due, at least partially, to hereditary causes; that his grandfather died of softening of the brain; that he has a second or third cousin, third cousin I believe the evidence shows, at the asylum in Danville. That is on the one side. And on the other side his mother died of tuberculosis, or consumption, and that both parents of the mother died of the same disease. It is contended that this fact accounts to some extent, at least, for the unsound condition of his mind. On the other hand, it is contended that the boy did not differ from the ordinary run of boys, that his mind is not affected and was not affected at the time of the commission of this crime; that during a long course of years, in the association with his neighbors, nothing had ever been noticed by any of those who'testify on the part of the commonwealth that was extraordinary or out of the way, or that would indicate unsoundness of mind, or mental deficiency. [17]</p> <p>Verdict of guilty of murder in the first degree, and sentence passed upon the verdict.</p> <p>Errors assigned among others were (1, 2) refusal to quash the venire; (3, 4) refusal to quash special venire; (5, 7) rulings on evidence as above, quoting the bill of exceptions; (6) failure to call the jury’s attention, in connection with the above instructions, to the inducement which led to the confession, and its effect; (17) failure of. the court, in connection with the above instructions, to charge fully on the value of the expert testimony as to the insanity of the prisoner; (19) refusal to arrest judgment because of separation of jury.</p>

<p> Negligence—Railroads—Passenger—Presumption—Evidence. </p> <p>Where a passenger on a railroad is injured by a defect in the track, there is prima facie a presumption of negligence on the part of the railroad company which carries the case to the jury, notwithstanding that the evidence to rebut the presumption may be very strong.</p> <p> Negligence—Railroad—Passenger—Proximate cause—Disease—Province of court and jury. </p> <p>Where a passenger injured on a railroad dies more than a year after the accident, and it appears that he had an attack of grippe a month before he died, but the evidence shows that he had never recovered from the effects of his injuries; that they were apparently internal, and indicated a serious derangement of the liver before he had grippe, the question of the proximate cause of the death is for the jury under careful instructions.</p> <p>Negligence—Death—Damage—Acts of April 15,1851, and April 26,1855.</p> <p>Where a person injured by the negligence of another has brought an action and died, the action may be continued by his executor or administrator for the benefit of his estate, under section 18 of the Act of April 15, 1851, but no new action can be brought by persons entitled to sue under section 19 of the act. If the action is continued the measure of damages is the loss which the deceased sustained by reason of his injuries. No damages can be recovered for the loss which other persons sustained by reason of his death.</p> <p>Where a person assigns to another an action for personal injuries caused by defendant’s negligence and subsequently dies, the personal representative of the injured, person is entitled to continue the action, and the defendant cannot set up the assignment as a defense.</p>

Appeal, No. 171, Oct. T., 1899, by William R. Christian, from order of C. P. Beaver Co., Sept. T., 1899, No. 2, dismissing exceptions to auditor’s report. Exceptions to report of auditor, Agnew Hice, Esq. From the record it appeared that the fund for distribution was raised by an assignee’s sale of goods alleged to belong to Charles E. Stewart & Company. The auditor found as a fact that a partnership existed.

<p>Sale—Conditional sale — Bailment—Preferred payment—Retention of possession.</p> <p>Where a contract in writing provides for the delivery of goods by one person to another, but with a retention of the legal title until certain promissory notes given for the goods be paid, and there is no provision for the return of the goods if the notes be not paid, the transaction constitutes a conditional sale, and not a bailment, notwithstanding the fact that the contract is called a “ lease ” in the paper itself.</p> <p>A purchaser agreed to take certain machinery on approval, and, if satisfactory, to pay a stipulated price. After the trial, another agreement was made reciting that the seller had delivered and leased to the purchaser the machinery, in consideration of the delivery of certain notes', the title to remain in the seller until the notes were paid; that the purchaser was to retain possession unless he defaulted in payment; and that, on payment, the seller was, by bill of sale, to convey all title to the purchaser. A receipt for the notes recited that the title was to remain in the seller until they were paid. Held, that such agreements evidenced a conditional sale, and not a bailment.</p>

<p>Appeal, No. 176, Oct. T., 1899, by plaintiff, from judgment of C. P. Washington Co., Nov. T., 1898, No. 38, on trial by the court without a jury.</p> <p>Ejectment for a leasehold in Buffalo township.</p> <p>Trial by the court without a jury.</p> <p>McIlvaine, P. J., filed the following opinion:</p> <p>FACTS FOUND.</p> <p>1. On April 22, 1887, W. B. Crotliers, the defendant, leased his farm in Buffalo township in this county, containing ninety-six acres, more or less, to the Marshall Oil Company, “its successors and assigns, .... for the sole and only purpose of drilling and operating for petroleum oil and gas for the term of ten years and as long thereafter as oil or gas is found in the land herein described in paying quantities,” with the right “ to remove at any time any and all machinery, oil well supplies or appurtenances and property of any kind to said party of the second part belonging or by it placed on said premises. . . . In consideration of said lease .... the said party of the second part ” agreed “ to pay to said party of the first part five hundred dollars annually for each gas well from the time said gas is conducted and used or sold off of said premises ” . . . . and “ in further consideration of said lease”. . . . “the party of the second part ” agreed “ to deliver to said party of the first part the one-eighth of all the oil produced and saved from said premises and to deliver the same to a pipe line for the said party of the first part.”</p> <p>2. The rights of the Marshall Oil Company by assignments were transferred and vested in Cecelia Cassell on March 18, 1891, and were held by her from that date until the bringing of this action.</p> <p>3. A number of wells were drilled on this farm under this lease shortly after its execution, and oil but not gas was found in paying quantities. The term of the lease (ten years) expired on April 22, 1897, and at that time there were five wells that had been or were being pumped for oil. On July 1,1897, four wells were producing oil, and on November 14,1897, only three. On the last named day all the oil in the'tanks was run into the pipe line, all the wells were shut down, and the loose tools were locked up, and the employees in charge of the lease left it and none of them returned, except as hereinafter stated. At the time the wells were thus shut down they were making, in all, about one or two barrels of oil per day, and were not at that time producing oil in paying quantities, a production of eight or ten barrels per day being necessary before it could be said that the premises leased were producing oil in paying quantities. The wells were shut down and left, as we have indicated, by the field manager in pursuance of directions received from the attorneys in fact of Cecelia Cassell, the plaintiff, which directions were contained in the following letter:</p> <p>“New York, Nov. 9,1897.</p> <p>“ T. E. Sloan,</p> <p>“ Taylorstown, Pa.</p> <p>“Dear Sir: In reply to yours of November 8th would say, that we have recently written Mr. Malick to instruct you to shut down the Blayney well and the W. B. Crothers farm for the winter. It is not our intention to clean out any wells in that section before next spring. Our Mr. Malick will see you soon, as he intends to make a trip to Taylorstown shortly.</p> <p>“Yours truly,</p> <p>“ Bettman, Watson & Bernheimer.”</p> <p>These people controlled a number of wells in this “section” beside those on the Crothers farm, some of which were not shut down.</p> <p>4. Some time in April, 1898, W. B. Crothers, the defendant, entered and took possession of all the wells and property of the plaintiff, including boilers, engines, steam pipe, sucker rods, tools, etc., claiming that the term of the lease had ended and that the leased premises and everything found thereon belonged to him. He shot and cleaned out some of the wells, rebuilt some of the rigs and repaired some of the machinery, and by the 1st of July, 1898, was producing oil in paying quantities, to wit: eight or ten barrels per day. On May 15 or 16, 1898, the plaintiff, knowing what the defendant had done, sent an employee to take charge of her wells on this farm, who was ordered off and threatened with arrest by the defendant—he, in justification of his action, claiming that the plaintiff had no longer any rights under the lease of date April 22, 1887. Between November 14,1897, when the wells were shut down, and May 15 or 16, 1898, when this employee made his appearance, no one in behalf of the plaintiff had done anything upon the leased premises. On August 24,1898, this action of ejectment was brought to recover possession of this tract of land for oil and gas purposes.</p> <p>CONCLUSION.</p> <p>From the foregoing facts we hold as follows:</p> <p>1. The plaintiff did not abandon her rights under the lease.</p> <p>2. The plaintiff did not forfeit her rights under the lease; but,</p> <p>8. The period for which she held under the lease, on November 14, 1897, became subject to termination, as oil or gas was not being produced in paying quantities, and that the defendant on April 1, 1898, had a right to re-enter to determine it.</p> <p>4. This did not give him the right, eo instanti, to take and convert to his own use the plaintiff’s personal property found upon the lease or such fixtures as she had not had, after notice, a reasonable time to remove.</p> <p>5. The plaintiff’s remedy against the defendant for taking and appropriating any personal property or fixtures which she had a right to remove is not an action of ejectment.</p> <p>HOW THE COUNT ANNIVED AT ITS CONCLUSIONS.</p> <p>A lessee’s rights under an oil lease may be terminated by “ abandonment,” by “ forfeiture ” and by “ expiration of the term ” for which the lease was made. “ Abandonment is the relinquishment or surrender of rights of property by one person to another; it includes both intention to abandon and the external act by which the intention is carried into effect: ” 1 Am. & Eng. Ency. of Law (2d ed.), 1, and notes.</p> <p>The position, that the plaintiff, when she caused the wells on this lease to be shut down and the tools safely locked up, intended to abandon her claim to the lease and her right to remove personal property of great value, is under the facts found clearly untenable. The letter of the attorneys in fact shows that no abandonment was intended, and the writer of the letter says in his testimony that none was intended, but that they expected to come back in the spring and clean out the wells. And we think it is clear, independent of his testimony as to their intention, that the plaintiff intended in the spring to come back and either clean out the wells or remove her personal property, the right to remove which was given by the lease. “ Forfeiture means the loss of something as a penalty for doing or omitting to do a certain required act.” In the lease, under which the plaintiff claims, we are unable to find any covenant expressed or implied that the plaintiff so far failed to perform that would forfeit to the defendant not only her right to take the oil and gas found in the land, but her right to remove “ at any time any and all machinery, oil well supplies or appurtenances and property of any kind to her belonging.” Forfeitures are not favorites of the law, and equity may relieve against them even where the act of the party out of which the forfeiture arises is unequivocal and undisputed. In the case at bar the only grounds upon which the defendant might claim that the plaintiff had forfeited all her rights under the lease is that she shut the wells down. But she was only bound under her implied covenant to operate them as long as oil and gas were found in paying quantities. If oil and gas were not being found in paying quantities she had the right to shut down the wells and take such time as the defendant would allow her, or as'was reasonable, to remove her machinery. But suppose, for the sake of the argument, that there had been written in this contract of lease these words: “ If oil is found in paying quantities, the lessee shall operate the producing wells continuously and with reasonable diligence, and if he fails to do so and thus deprives the lessor of his royalty, he shall forfeit to the lessor his rights to further operate, and the oil and gas remaining in the leased premises shall revert to the lessor.” Would such a clause of forfeiture be self-operating, and would it affect the right to remove the machinery? In our opinion it would not. It would be operative only from the time the lessor elected to enforce it. And the lessor could not by the same act terminate the lease and appropriate the personal property and fixtures of the lessee to his own use. A reasonable time should be given to remove these after the forfeiture was declared. Surely equity would not allow a forfeiture of the lease and what was demised and granted by it to the lessee to carry with it a forfeiture of the right reserved to the lessee to remove his machinery, etc., unless the forfeiture of the machinery was also expressly provided for. “Where a lease provided for forfeiture for nonpayment of royalty, and also that new buildings placed upon the laird by the lessee might be reserved at the termination of the lease, unless all right thereto has been forfeited by a forfeiture of the lease, .... Held, that the right to remove buildings within a reasonable time was not lost by forfeiture for nonpayment of royalty. The forfeiture for nonpayment was a forfeiture of the lease only, and it should clearly appear that it also provided for the forfeiture of the buildings before it can be declared so:” Barringer & Adams, Mines & Mining, 151; Mickle v. Douglas, 75 Iowa, 78; 12 Am. & Eng. Ency. of Law, 758, note 7; Wick v. Bredin, 189 Pa. 83.</p> <p>This brings us to the consideration of a question that, so far as we know, has not been before any of our courts, and that is, what is the true interpretation to be put upon the words “ and as long thereafter as oil or gas is found in the land herein described in paying quantities,” as found in this lease ? The parties fixed the term of the lease at ten years, which expired on April 22,1897, but they provided in case oil or gas was being profitably mined at the end of this term that it could be extended to another date to be fixed by the failure of the land leased to yield oil or gas in paying quantities. When this uncertain date was capable of being made certain, then the lease could be terminated, and after that date the lessee, if he did not surrender the premises, was a tenant at will, and the landlord could at any time enter and repossess himself of the premises demised, and after such entry the rights of the lessee to the oil and gas, even if it was afterwards discovered in paying quantities by the landlord, would be terminated. The true interpretation of the words “ as long thereafter as oil or gas is found in the land in paying quantities ” is not “ as long thereafter as oil or gas can be found in the land in paying quantities by any one,” so as to give the lessee a tenancy until all the oil and gas in the land shall be exhausted, but is this, “ as long thereafter as oil or gas is actually being found in the land in paying quantities under such developments as the lessee has seen fit to make under her covenants in the lease.” Taking her manner of operating the lease, the ten-year term having expired, the moment she failed to produce oil in paying quantities, that moment the tenancy became a tenancy at will, -which could be ended at any time by either the tenant or the landlord. We cannot see how a lessee in an oil lease on a royalty, not an annual rental, holding over (after a definite term has expired) under the extension of the term for “ as long thereafter as oil is found in paying quantities,” can be a tenant from year to year, as suggested by the counsel for the plaintiff. In a tenancy from year to year “ the holding over implies a term of the same duration as the original term, and the payment of an annual rental.” The lease here .definitely fixes the length of the extended term. A failure at any time after April 22, 1897, to produce oil in paying quantities ends it, and a holding over after that contingency could not by implication be for the purpose of producing oil. After the failure to produce oil in paying quantities the plaintiff’s rights are limited (if the defendant elects to terminate the lease) to the removal of his machinery and to a possession for a reasonable length of time that this might be accomplished, if the property has not been taken but remains as the plaintiff left it when he stopped producing oil. Where oil was no longer being produced in pajdng quantities the lease was liable to be terminated, and after that, in our opinion, it must be regarded as a tenancy at will, and not from year to year, or if not a tenancy at will, then a tenancy at suffrance.</p> <p>In conclusion, then, our opinion, under the facts and the law as we have found them, is that when the wells were shut down in November, 1897, when they were not producing oil or gas in paying quantities, and when the plaintiff left the premises for the -winter, the tenancy became a tenancy at will, and that the defendant then and afterward, so long as these conditions remained, had the right to terminate the lease, and that his entry in April, 1898, to terminate it, if confined solely to that purpose, was not unlawful. But that he had no right, as part of the act terminating the lease, to take and appropriate the plaintiff’s machinery, oil well supplies and other personal property. He could not lawfully enter to take the fixtures. It was his duty,—she not having elected to terminate the lease nor having consented to the entry of the defendant,—to give her a reasonable time and opportunity after notice to remove her property. “ Where the tenancy is uncertain in duration, as when it depends upon a contingency or when the lessee is a tenant for life or at will, the law allows a reasonable time for the removal of fixtures: ” 8 Am. & Eng. Ency. of Law (1st ed.), 62. And this brings us to the question, what kind of a judgment should be entered in this case on our findings? We are asked to enter a judgment for the plaintiff, if not generally, at least for the possession of the land “ for the purpose of removing the property placed thereon by the lessee and its assigns in the' operation for oil and gas.” It is true that ejectment is an equitable remedy, and conditional judgments are sometimes entered to force the defendant to do equity. But in this case the evidence shows that the plaintiff’s property has been appropriated by the defendant, and much of it has been changed in character, and we do not see how, in an action of ejectment, we could mould a judgment that would give to both parties their rights. The most that we can do for the plaintiff is to mould the judgment so as to show that her right to the machinery, oil supplies, pipes, boilers, engines, tools, etc., on the land in dispute and taken by the defendant, as she claims unlawfully, is not adjudicated in this case, and her property is not, by reason of the judgment herein entered, to be considered as part of the land (the possession of which is found to rightfully be in the defendant), at the time he re-entered in April, 1898.</p> <p>Plaintiff’s points and the answers thereto were as follows:</p> <p>1. The plaintiff, under the lease made by the defendant, was in possession of said land under a tenancy from year to year, and could not be dispossessed without due and legal notice to quit given by the defendant. Answer: Refused.</p> <p>2. Under all the evidence in the case the plaintiff is entitled to the possession of the land in dispute for oil and gas purposes. Answer: Refused.</p> <p>3. If the second point is refused, then, under all the evidence in this case, the plaintiff is entitled to the possession of the land, for the purpose of removing the property placed thereon by the lessee and its assigns in its operations for oil and gas. Answer : Refused.</p> <p>And now, February 2, 1899, it is ordered that this decision be filed in the protlionotary’s office and that notice of said filing be given to the plaintiff and the defendant or their counsel, and if no exceptions be filed to said decision within thirty days, that judgment be entered in favor of the defendant for the land described in the plaintiff’s praecipe for oil and gas purposes and for the oil and gas in said land, without prejudice to the plaintiff’s right to maintain an action against the defendant for taking and appropriating any machinery, oil well supplies or property of any kind that belonged to her and which may have been upon said land when the defendant took possession of it for oil and gas purposes, and when he, without notice, terminated the plaintiff’s lease ; the plaintiff’s and defendant’s rights as to said machinery, oil well supplies and property not having been adjudicated in this action.</p> <p>On exception McIlvaine, P. J., filed the following opinion:</p> <p>The exceptions taken by the plaintiff to the decision of the court in this case are to the conclusions of law and not to the findings of fact, and raise two questions which merit consideration : first, in April, 1898, when the defendant dispossessed the plaintiff, was she a tenant from year to year; and second, under the facts in this case, is ejectment the plaintiff’s remedy to recover the “machinery, oil well supplies and other property ” placed by her and her predecessors in title upon the leased premises, granting that her title to the leasehold estate was terminated by the entry of -the defendant;—in other words, should the plaintiff’s third point have been affirmed and judgment entered in accordance therewith?</p> <p>First question: The unique character of an “ oil lease ” makes it somewhat difficult to apply the well established rules that, under the common law, apply to the ordinary lease where the relation of landlord and tenant, pure and simple, is created. In an oil lease the “ lessor ” and the “ lessee ” sustain a dual relation to each other. In a sense they are landlord and tenant, but they also sustain the relation of “ grantor ” and “ grantee ” of an interest in lands. The lessee is a tenant as to the surface of the land so far as it may be necessary to carry on his mining operations, but as to the oil in the land after it is discovered by the drill he is the “ grantee,”—the owner in fee simple. The lessor for the occupancy of the surface of the land does not, as is usual with landlords, receive a rent,—a compensation payable periodically, nor does he receive part of the produce of the land leased,—he receives part of the land itself,—a royalty,—a part of the oil mined and oil in place is real estate. The tenancy of the plaintiff in tills case, which alone related to the surface of the defendant’s land after April 22, 1897, was not in consideration of the payment of a sum of money periodically made, but depended upon the continued production of oil in paying quantities: or, stated negatively, upon the exhaustion of the mineral that was being mined. The moment that oil was not being produced in paying quantities, and that fact was ascertained and declared, that moment the right to occupy the surface for oil and gas purposes ceased, regardless of the fact that the termination of the fixed term of the lease was on April 22, 1897. To say that the lease after April 22, 1897, was a lease from year to year, would be to change the contract of the parties from a lease to continue “ so long thereafter as oil may be found in paying quantities ” to a lease to continue “ so long thereafter as oil may be found in paying quantities, provided the termination shall only occur on April 22, the end of a year counting from April 22,1897, the end of the fixed term.” That is to say, if the leased premises actually and beyond dispute produced some oil, but not in paying quantities, say on April 24, 1897, the lessee, for the gain of the lessor, would be bound to, pump the wells at a loss until April 22,1898, there being some' to be pumped; or if the oil was totally exhausted, the lessee could retain the surface of the land for one year lacking two days, without compensation to the lessor. Surely the parties did not intend this. Again, suppose that on November 14, 1897, the plaintiff, in place of shutting down, had, against the will of the defendant, removed all her machinery, oil well supplies and other property because the lease was not producing oil in paying quantities, could the defendant (admitting the fact that oil was not being produced in paying quantities) maintain an action against the plaintiff for royalties for the year ending April 22, 1898, fixing the amount at the same as he received the year ending April 22, 1897 ? Certainly not. As we said in our attempt to vindicate our conclusions of law in the decision heretofore filed, we know óf no case where the question here raised has been passed upon by any of our courts. Adopting a rule, then, that will do equity to both parties, we hold that in an oil lease for a fixed period and “ as long thereafter as oil is found in paying quantities,” where the lessor’s compensation is one eighth of the oil produced, the tenancy as to the surface of the land, after the expiration of the fixed period; and after the fact that oil is not being found and produced in paying quantities becomes susceptible of proof, is a tenancy in the nature of a tenancy at will, and if not actually terminated by mutual consent, or continued by mutual consent in order that further exploration be made, may be terminated by either party.</p> <p>Second question: Here we have another new question. At first our mind was inclined to yield to the argument of counsel for the plaintiff. But, on. reflection, our best judgment is that the wrong the defendant did (if any) was not so much against the. plaintiff’s right of possession, her right to enter and remove her property, as it was against her title to the personal property in question—her right to the property itself. From the testimony in the case, and from what was said by the counsel of the defendant at the argument, and from the inferences that can be fairly and legally made from what was developed in this trial, the defendant, when he took possession of the plaintiff’s property, not only intended to terminate the leasehold estate, but to actually appropriate and convert to his own use the property that, at least during the running of the lease, was the plaintiff’s personal property. Suppose that on the very day that the defendant entered to terminate the leasehold estate he had moved the boilers, engines, loose tools and other personal property off the land and sold them, what would the plaintiff’s remedy have been? Certainly we could not have entered judgment in this ejectment suit against him conditioned that it would be released and set aside upon his returning to the plaintiff the personal property or the money he received from its sale. The defendant did not sell the property, it is true, but he took it and converted it to his own use, and to some extent has changed its character. And if it was personal property when the defendant appropriated it to his use (and not part of the real estate, as claimed by the defendant), then we take it the plaintiff’s remedy against the defendant would be the same as against a stranger to the lease, or as it would have been against the defendant had he, during the ten-year term, taken and appropriated to his own use the personal property.</p> <p>The controversy between the plaintiff and defendant (granting that the plaintiff is not entitled to the possession of the land in dispute for oil and gas purposes) turns upon the question whether the machinery, oil supplies and other property on the land when they were appropriated to his use by the defendant was personal property or part of the real estate; if the latter, then the plaintiff’s third point could not be affirmed; if the former, then the defendant was guilty of trover and conversion, if the property, as we have found, was not abandoned nor forfeited, and the third point could not be affirmed.</p> <p>And now, April 8, 1899, exceptions overruled, and it is ordered that judgment be entered in accordance with decree herein filed with decision on February 2, 1899.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 24, Oct. T., 1899, by plaintiffs, from judgment of C. P. Lawrence Co., March T., 1894, No. 12, on verdict for defendant. Ejectment for a tract of land in the Shenango river at New Castle. Before Raybubn, P. J., of the thirty-third judicial district, specially presiding. At the trial it appeared that the plaintiff claimed title under a sheriff’s sale of the property of the Erie Canal Company.

Appeal, No. 17, Oct. T., 1899, by defendants, from order of C. P. Greene Co., April T., 1898, No. 123, refusing to open judgment. Rule to open judgment. The facts appear by the opinion of Crawford, P. J., which was as follows: The note upon which judgment was originally entered to ■ No. 142, January term, 1888, in this court, was executed by the defendants on November 3,1887, and the original judgment was entered thereon December 15,1887.

Appeal, No. 160, Oct. T., 1899, by defendants, from decree of O. P. Washington Co., No. 996, in equity. Bill in equity to compel the satisfaction of a mortgage. The facts appear by the opinion of McIlvaine, P. J., which was as follows: DECISION.

Appeal, No. 130, Oct. T., 1899, by plaintiff, from judgment of C. P. Butler Co., June T., 1896, No. 47, on verdict for defendant. Assumpsit for goods sold and delivered. Before Greer, P. J. The court charged as follows: You have been sworn to try an action of assumpsit brought by the plaintiff against the defendant, to recover $1,098.50, which it alleges the defendant owes it for goods sold and delivered to him at Jamisonville, Butler county, Pa.

Appeal, No. 92, Oct. T., 1899, by plaintiff, from judgment of C. P. Greene Co., June T., 1898, No. 7, on demurrer to statement. Assumpsit for money alleged to be due under an assignment of a gas lease.

Appeal, No. 19, Oct. T., 1899, by plaintiffs, from order of C. P. Greene Co., June T., 1899, No. 8, making absolute a rule to open judgment. Rule to open judgment.

<p>Appeal, No. 25, Oct. T., 1899, by Daniel Kaylor, from decree of O. C. Jefferson Co., May T., 1897, No. 9, sustaining exceptions to auditor’s report.</p> <p>Exceptions to report of auditor, John M. White, Esq.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining exceptions to auditor’s report.</p>

<p> Partition—Jurisdiction of orphans' court—Conversion. </p> <p>Testator by his will devised the residue of his real and personal property to his children excepting a son, share and share alike. By a codicil he gave two full equal shares with' his other children to a trustee “ to put and place the same out at interest on good real security, and pay over the interest thereof” to the excepted son and a niece. Held, that there was no conversion of the shares of the devisees, except, perhaps those given to the trustee, and if there was a conversion as to them the orphans’ court had jurisdiction to decree partition on petition of the devisees holding their shares as land.</p> <p> Partition—Parties—Trustee. </p> <p>Where in partition proceedings it appears that two of the shares are held by a trustee, named as such in the petition, and it also appears that the trustee, as an attorney at law, had conducted the whole proceedings, the fact that he was not served as trustee will not invalidate the proceedings. '</p> <p> Partition—Trustee—Bidding at sale. </p> <p>An executor who has the right to make sale in partition proceedings may, if he secures the appointment of a trustee to make the sale, purchase the land and make a good title to another person; and this is especially the case where the executor is also a trustee of certain shares of the land sold.</p>

Appeal, No. 35, Oct. T., 1899, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1898, No. 866, refusing to take off nonsuit. Scire facias sur mortgage. The facts appear by the opinion of White, P. J., which was as follows: This action is a scire facias on a mortgage given by Charles Link on January 16, 1873. Mr. Sawyer had deeded three lots of ground to Mr. Link, and the mortgage was given either in full or part payment of those lots.

Appeal, No. 37, Oct. T., 1899, by Charles J. Butterwick, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1898, No. 94, on judgment for plaintiffs. Case stated to determine the ownership of a fund in court. On July 23,1896, Charles J. Butterwick brought suit against Mrs. Margaret J. Maguire, to recover for the loss of a leg resulting from her illegal sale of liquor to him in June of that year, and obtained a verdict for $6,838.

<p> Road law—Paving—Original pavement—Turnpilce company. </p> <p>In proceedings to charge abutting properly owners with the cost of paving a borough street, the owners will not be relieved on the ground that the work was a repaving, where it appears that a turnpike company had stoned a portion of the road from one fourth to one half the width, and at the time the road ceased to be the property of the turnpike company such stoning as had been done was in a ruinous condition, was removed by the borough in paving, and had never been used or adopted by it.</p>

<p>Appeal, No. 49, Oct. T., 1899, by William Jenkinson, from order of C. P. No. 2, Allegheny Co., Jan. T., 1895, No. 361, dismissing exceptions to report of viewers.</p>

<p>Appeal, No. 388, Jan. T., 1897, by Benjamin L. Greider, from judgment of O. P. Lancaster Co., Sept. T., 1894,- No. 39, on verdict for defendants.</p> <p>Trespass to recover damages for the obstruction and pollution of a stream. Before Livingston, P. J.</p> <p>Hoffman’s Run in the city of Lancaster forms the only natural drainage for about three fourths of the built up portion of the city. All the sewers in the city necessarily empty into this stream. The bed of the stream is sufficiently capacious to ordinarily convey its own waters and the city sewage. In times of flood the banks are overflowed.</p> <p>Further facts will be found in the opinion of the Supreme Court, and in the previous report of this case in 182 Pa. 257.</p> <p>Plaintiffs’ points and the answers thereto among others were as follows:</p> <p>2. If the jury believe that the defendant made the stream of water known as Hoffman’s Run part of the sewer system of defendant, and permitted any other person or persons to empty into said run any impure matter, the defendant is responsible to the plaintiffs for all damages they may have sustained as adjoining property owners along said stream. Answer: This is one of the wide shots. There is no evidence before you that the city permitted or gave permission to anybody to throw anything into this stream; no evidence of that kind that I remember ; you will recollect, but I think there is no evidence of that kind. If the city gave authority to anybody to do that, of course it would be liable, the same as it would be if it was negligence on its part. [9]</p> <p>8. If the jury believe that through the carelessness and negligence of the defendant, it allowed the stream of water known as Hoffman’s Run to clog up and swell its banks and carry the refuse, offal and offensive matter that came out of defendant’s sewers into and upon plaintiffs’ land, the defendant would be liable for all damages that plaintiffs have sustained as adjoining property owners along said stream. Answer: You will remember, I don’t now recollect any testimony showing that any portion or at any point was this sewer clogged up, or threw out of its stream any matter of any kind, whether offal, refuse or other offensive matter, except in time of storm. And the Supreme Court, as I have read to you, has said: “ If the corporate authorities of a borough, having knowledge thereof, suffer a public culvert of sufficient capacity in itself extended through private property to be reduced in capacity, insufficient to carry the ordinary flow of water, the borough is liable to the property owner for the resulting injuries.” I think there is nothing in the evidence—that is my judgment and recollection of it. This has not been at any time clogged up, or cast out any of its refuse matter on the plaintiffs’ property in the ordinary flow of water, at any time except during the time of flood or high water—rain. [10]</p> <p>4. If the jury believe that through the carelessness and negligence of defendant it allowed the stream of water, known as Hoffman’s Run, to clog up and overflow its banks and carry the refuse and impure matter which came out of the defendant’s sewers into and upon plaintiffs’ land, and caused poisonous odors and poisoned the atmosphere and poluted the plaintiffs’ land the defendant is liable, and the verdict of the jury should be for the plaintiffs. Answer: That would be true if the evidence carries it out. Whether it does or not is a question for you. As I said before, my recollection of the evidence is, it did nothing of this kind at any time except when the water was not in its ordinary condition but was swollen by rains or storms. As to the poisonous odors, if there were any arising from this, of course they would be liable if it was negligence. [11 ]</p> <p>5. If the jury believe that the defendant through carelessness and negligence permitted the stream of water, known as Hoffman’s Run, to accumulate with filth and dirt and clog the channel of the stream, and cause it to overflow its banks and carry offal and impure matter into and upon plaintiffs’ land, and the plaintiffs were injured in consequence of this negligence, the defendant is liable and the verdict should be for the plaintiffs. Answer : If that state of facts existed—the negligence and carelessness of the city—then‘they would be liable; but as I said before, there is nothing to sustain the first part of this point. The jury will remember whether there is any evidence of any overflow at any time except in high water; and if there was, was it the negligence of the city ? If they find it was, then they should find -for the plaintiffs, so much as they find they have been injured by reason of that act of negligence. [12]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>2. If the jury believe that the defendant has used Hoffman’s Run as an open sewer, continuously, for a period of more than twenty-one years before September 6,1894 (that being the date on which the suit was brought), then there can be no damages recovered by plaintiffs for the taking of said stream as a sewer, for the reason that the defendant has acquired a right to use it as an open sewer by prescription. Answer: It had acqúired a right to use it, but having acquired that right the city must use it without negligence and carelessness as to the property of other parties; it must so use it, if possible to do so, that the property owners along and adjoining it will not be injured by its occupation and use of it; it has a right 'to use it and occupy it, but it must use it as another man would use his own property so he does not injure his neighbor. If it is carelessly and negligently used his neighbor is entitled to damages for the injury sustained. [13]</p> <p>3. If the jury believe from the testimony that the city does not use Hoffman’s Run as an open sewer in a careless or negligent way, it is not liable in the present suit for any damages. Answer : That we affirm. We say if you find the city has done its duty and has not been negligent or careless in the use of this sewer, this city run, then the plaintiffs are not entitled to damages because they have suffered none. The defendant has done its duty. It has a right to take water down there, but must do it in a way not negligent or careless, or injurious to the owner of the land. [14]</p> <p>4. The city of Lancaster is not liable for any damages that plaintiffs may have suffered by reason of the overflowing of the banks of this stream, if the same is caused by the city being more solidly built up and the streets being macadamized as testified to by plaintiffs’ witness. Answer: That is, we say, correct, and we affirm this point, provided the jury find there was no negligence on the part of the city in the use made of this stream. [15]</p> <p>Verdict and judgment for defendant. Plaintiff Benjamin L. Greider appealed.</p> <p>Errors assigned among others were (9-15) above instruc tions, quoting them.</p>

<p>Orphans' court sale—Trice Act—Act of April 18, 1853—Title—Parties.</p> <p>Where testator states in his will that it may be necessary to sell a designated portion of his real estate to pay off debts on the remainder, and the executor obtains from the orphans’ court an order of sale under the act of April 18, 1853, and all of the heirs and parties in interest are made parties to the proceeding, except a nonresident heir not heard from for thirteen years, and upon whom advertisement has been made by order of court, the executor may make a good title to the property which the testator designated to be sold.</p>

<p>Appeal, No. 16, Oct. T., 1899, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1896, No. 42, on verdict for defendants.</p> <p>Ejectment for land in the city of Johnstown. Before Barker, P. J.</p> <p>At the trial it appeared that plaintiff claimed title under a deed dated November 18, 1894, from Charles Barnes, her husband, to herself. The consideration named in the deed was the sum of $5.00, and “ the further consideration of love and affection for my said wife.”</p> <p>Plaintiff alleged that the real consideration was an antenuptial agreement in parol, and that her consent to marry was based upon a promise of said Charles Barnes to convey to her his real estate. Defendants claimed title under sheriff’s deeds resulting from executions against the property of Charles Barnes.</p> <p>The defendants offered to prove by John F. Barnes that, soon after the marriage of Charles Barnes, the husband of the plaintiff, he was building a house on a lot which he had bought, and that he ran out of money; that his wife, Mrs. Sheppard, had $700 in money and a considerable amount of personal property; that Charles Barnes asked that she loan the money to him; that they then called in John F. Barnes, the witness, and the transaction was consummated by her loaning him the $700 and giving him the ownership of her personal property, which came from her former husband and from her earnings by teaching school; that they settled the amount, first by determining how much the personal property was worth, the money, of course, fixing its own value; that they finally agreed that the money and the property would constitute a debt of $1,000; that he then agreed if she would loan him that money he would pay it back with interest to her daughter, Mary, when it became convenient or necessary, if Mary wanted it.</p> <p>The purpose is to show that that money was actually owing from him to her long before this last marriage, and to fix the date and the circumstances attending the date as to when that money became due, and that that constitutes a part of the consideration of the $10,000 note of Charles Barnes in 1889 and was one of the judgments on which execution was issued.</p> <p>Plaintiff objected to the offer, (1) as irrelevant to affect her . interest or title to the land in controversy; (2) because any arrangement or agreement in the absence of the plaintiff in this suit cannot affect her right or title to the property in suit; (8) as incompetent in so far as to affect the title of the plaintiff to the property mentioned and embraced in the writ in this case.</p> <p>The Court: Objection overruled and exception noted for plaintiff. [3]</p> <p>Mr. Rose in opening the case for the defendants proposed to offer certain exemplifications of the record of Jefferson county, Pennsylvania.</p> <p>Plaintiff objected, as the offer should be preceded or followed by proof showing that there was an existing debt as indicated in the statement in the claim.</p> <p>The Court: Objection overruled and bill sealed for plaintiff. [4]</p> <p>Stewart H. Whitehill, witness for defendant, was permitted, under objection and exception, to testify to the terms of contract made between Charles Barnes and the wife of the witness in his presence. [6]</p> <p>Verdict and judgment for defendants.</p> <p>Errors assigned among others were (3, 4, 6) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 2, Oct. T., 1899, by defendant, from judgment of C. P. Armstrong Co., June T., 1897, No. 123, on verdict for plaintiffs.</p> <p>Ejectment for land in Kittanning township. Before Rat-burn, P. J.</p> <p>The plaintiffs claimed under a lease dated July 11, 1887, from Wm. M. Campbell to them, for the exclusive right of drilling and operating for petroleum and gas, 100 acres of land in Armstrong county, the material portions of which lease are as follows:</p> <p>“ The parties of the second part their heirs or assigns to have and to hold the above described premises for and during the term of 20 years from the date hereof, and as much longer as oil or gas is found in paying quantities thereon.</p> <p>“ The said parties of the second part, in consideration of the said grant and demise, agree to give to the party of the first part, the full equal £ part of all the petroleum obtained or produced on the premises herein leased and to deliver the same in tanks or pipe lines to the credit of the party of the first part. . . .</p> <p>“ The parties of the second part agree to drill a test well in the vicinity of the above described premises, within 6 months from the date hereof, unless prevented by accident, etc., and if oil is found in paying quantities in said test well, the parties of the second part further agree to complete one well on the above described premises within 6 months from the completion of said well, or within one year from the date hereof or thereafter to pay the party of the first part for such a delay a yearly rental of fifty cents per acre from the time of completing such well on the above described premises payable directly to the party of the first part. And the party of the first part agree to accept such sum as full payment for such delay until a well shall be completed on the above described premises; and a failure to complete such well or make such payment renders this lease * null and void, and said parties of the second part upon surrendering, or offering to surrender this lease shall be released and discharged from making said payment or payments, and from all claims or demands for damages arising or growing out of a failure to drill or complete said well or wells, and the said lease shall remain without effect between the parties hereto.”</p> <p>The defendant claims under a lease dated October 2, 1891, for the same land from the said Campbell to Wm. C. Bailey & Company, which contained this provision:</p> <p>“ It is further agreed, by the parties of the second part, that should lease under date of July 5,1887, taken by Aye Bros, and R. S. Martin as the second part thereto be in full force and effect, then the said parties of the second part hereto agree to release said party of the first part of the demands above described and set forth.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiffs.</p>

Appeal, No. 58, Oct. T., 1899, by-plaintiffs, from judgment of C. P. Armstrong Co., June T., 1897, No. 122. Ejectment for land in Kittanning township. Before Rayburn, P. J. The facts appear by the charge of the court, which was as follows: At and prior to July 11, 1887, Matthew Louden was the owner of a tract of land in Kittanning township.

<p>Appeal, No. 168, Oct. T., 1899, by plaintiffs, from order of C. P. Clarion Co., April T.,' 1894, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit for money had and received.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts were found by Clark, P. J., to be as follows;</p> <p>This is the second rule for judgment for want of a sufficient affidavit of defense. The first statement of plaintiffs’ demand against defendant was to recover on his indorsement the amount called for in two certain promissory notes drawn by W. W. Weston to the order of G. E. Ramsey, each of which were indorsed in the order hereinafter stated by the following named parties, viz : by G. E. Ramsey, W. H. and D. 0. Conklin, Pitts-burg Vehicle and Harness Co., D. O. Hutchinson, treasurer, and J. B. Forker, the last indorser of said notes. The defendant filed his affidavit of defense thereto, in which he alleged in substance that he indorsed and delivered the same to the plaintiffs on Sunday, September 10, 1893, and received a check of said plaintiffs, for the amount of said notes, less the discount at the rate of ten per cent per annum, which check was executed and delivered by the plaintiffs to Forker, the defendant, on September 10, 1893, but was dated on September 11, 1893; that he, Forker, was not liable on his indorsement because it was executed and delivered on Sunday, September 10, 1893, and by reason hereof his indorsement was invalid and void, and that no recovery could be had in said action. On plaintiffs’ motion for judgment therein, in default of a sufficient affidavit of defense, a rule to show cause was granted and the rule was argued by counsel. On February 15, 1896, the opinion of the court was filed, in which the first rule was discharged without prejudice and the motion for judgment was refused. On April 13, 1896, the following motion and amended statement were presented to the court.</p> <p>We quote apart thereof here, as follows, viz: “And now, April 13, 1896, the plaintiffs, by J. T. Maffett, their attorney, move the court for leave to file an amended statement of claim in this case as set out in the following statement:</p> <p>“AMENDED STATEMENT.</p> <p>“ The court having decided that no recovery could be had on the indorsements of defendant as set out in the original statement filed in this case, because a Sunday contract, the plaintiffs, now by this amended statement, demand and claim of and from the defendant the money had and received by him from them upon the check given him by the plaintiffs as set out in said original statement, with interest from the date of said check, which, said money the plaintiffs paid to the order of the defendant by said check through the Second National Bank of Clarion, Pa., on September 15, 1893. The following is a copy of said check and its indorsements, and made part of this statement :</p> <p>“exhibit ‘A.’</p> <p>“ CooKSBUBG-, Pa., Sept. 11, 1893. No. 1027.</p> <p>“The Second National Bank of Clarion, Pa., pay to the order of J. B. Forker, $1918.34, nineteen hundred eighteen and 34-100 dollars, payable in exchange.</p> <p>“ A. Cook Sons, “A. W. Cook.</p> <p>“ Stamped paid September 15, 1893.</p> <p>“ Indorsed:</p> <p>“Pay to the order Pittsburg Vehicle & Harness Co.,</p> <p>“ D. O. Hutchinson, Treasurer.</p> <p>“ J. B. Fobkeb.</p> <p>“Pittsburg Vehicle & H. Co., D. O. Hutchinson, Treas.</p> <p>“ The plaintiffs file this amended statement to recover the amount of said check with interest from the date of the payment of the money called for thereby, to wit: September 15, 1893, which amount, to wit: $1,918.34, the plaintiffs say is justly due and payable to them by the said defendant with interest as stated.”</p> <p>The following order was indorsed on the back of said motion and amended statement, viz: “ April 13, 1896. Filed in open court. By the Court.”</p> <p>On April 18, 1896, defendant filed his affidavit of defense to said amended statement. The material part is as follows, viz:</p> <p>1. The plaintiffs are not entitled to amend their statement of claim in this action at this time, and thus introduce a new cause of action, or to take a judgment by default for want of an affidavit of defense.</p> <p>2. The defendant denies that he had or received any money from the plaintiffs on September 15,1893, or at any other time, as claimed in plaintiffs’ amended statement of claim, but avers that the check therein referred to, dated September 11, 1893, upon which plaintiffs now seek to recover, was executed and delivered to affiant on Sunday, September 10,1893, in exchange for the note of the Pittsburg Vehicle & Harness Company, for whom he was acting merely as agent, for $1,975, less the discount of ten per cent charged by the plaintiffs, and that the check was part of the same transaction, and was all executed and completed on said Sunday, September 10, 1893, without any previous contract. And affiant, when he had received the check, as referred to in his affidavit of defense, filed in this case on February 20, 1894, and made part hereof, indorsed it and sent the same to the Pittsburg Vehicle & Harness Company, the party entitled to receive the same, and for whom your affiant was acting as aforesaid.</p> <p>3. The money was not paid on said check for or in behalf of your affiant, and your affiant never received any benefit therefrom, nor any part of the money thereof.</p> <p>4. Affiant is not liable on his indorsement on said cheek under and by virtue of which, the plaintiffs’ amended statement of claim, this action is now sought to be maintained against him, in that it was an executed contract, of which the check was a part, and that the same was made and duly completed on Sunday, September 10, 1893, and by reason thereof is invalid and void, and no recovery in this case can be had thereon against him.</p> <p>On May 11, 1896, motion for judgment in default of a sufficient affidavit of defense to amended statement, was presented and filed in open court, and a rule to show cause was granted thereon the same day, returnable on the 1st Monday of June, 1896.</p> <p>The question now before us is whether or not the plaintiffs are entitled to recover the amounts of their claim or demand for want of a sufficient affidavit of defense. . . .</p> <p>In our former opinion we decided there could be no recovery against the defendant by reason of his indorsements of the notes then declared on because of the contract having been fully made on a Sunday, by reason of which the contract was invalid and void. We then thought there might possibly be a recovery for the «money had and received by virtue of the check given by plaintiffs to defendant, which had been paid by them through the bank, but we are obliged in the face of the facts alleged in defense to plaintiffs’ claim to change our views in the premises, because the whole contract was made and executed on Sunday. . .</p> <p>The test is whether the plaintiffs require the illegal transaction to establish their case. Public policy will not allow courts to aid one, grounding his action on an illegal or criminal act: Holt v. Green, 73 Pa. 198; Foreman v. Ahl, 55 Pa. 325. . . .</p> <p>That the check in controversy and upon which the money was paid was dated on September 11,1893, being Monday of the week, will not avail the plaintiffs in this action. . . .</p> <p>In the argument of counsel for plaintiffs, great stress was laid upon the fact that the money had and received on the check in question was received from plaintiffs through their bank on September 15, 1893, which was not on a Sunday, and therefore, there was an implied contract to repay the same to the plaintiffs with interest from the latter date. We cannot agree with counsel in such a proposition. The payment of a check to the payee is presumed to have been received on account of a debt due from the payer of the check to the payee, or for money or cash given for said check. A contract will not be implied when an express contract would for any reason be invalid. It is clear in the case at bar that there is no antecedent debt or contract upon which to base the action. All that was performed in regard thereto, so far as the plaintiffs and defendant are privies, was done and completed on Sunday. . . .</p> <p>It is shown by the pleadings in this case that there was a voluntary payment of said check, and that the check was given on Sunday. It is a well settled rule of law in Pennsylvania that, where a party voluntarily pays a debt void as to its legal obligation, the amounts so paid cannot be recovered back, nor could his executor or administrator obtain it for the benefit of creditors, nor would an attachment lie at the suit of such creditors : Speide v. McCoy, 6 W. & S. 485; Espy v. Allison, 9 Watts, 462; Mason’s Appeal, 1 Pa. 29; Lackay v. Mercer, 9 Pa. 318. We are fully convinced that plaintiffs are not entitled to judgment for want of a sufficient affidavit of defense, on their amended statement of claim in the case before us. We, therefore, make the following order:</p> <p>And now, August 31, 1898, after argument of counsel, and upon due consideration of the rule, the amended statement of claim and of the affidavits of defense, and for the reasons expressed in the foregoing opinion, the rule is discharged, and plaintiffs’ motion for judgment in default of sufficient affidavit of defense is refused.</p> <p>JError assigned was the order of the court.</p>

<p> Insurance—Life insurance—Application—Untruthful answer as to health. </p> <p>In an action upon a life insurance policy where it appears that the insured stated in his application that he never had any serious illness, when the undisputed evidence showed that a few months before the date of the application he had been seriously ill with typhoid fever, the defendant is entitled to binding instructions.</p>

Appeal, No. 84½, Oct. T., 1899, by defendant, from decree of Superior Court, Oct. T., 1898, No. 22, in reversing decree of C. P. Jefferson Co., May T., 1896, Nos. 40 and 41. Appeal from Superior Court. The facts appear by the opinion of the Supreme Court. The case is reported in 7 Pa. Superior Ct. 599. Error assigned was in reversing the order of the court of common pleas.

Appeal, No. 173, Oct. T., 1899, by plaintiff, from judgment of C. P. Jefferson Co., Sept. T., 1897, No. 393, non obstante veredicto. Ejectment for the undivided three fourths of 100 acres of land in Bell township. At the trial it appeared that Jacob Stigers made his will,' dated November 5, 1881, and died May 31, 1884, seized of but one tract of land, being the land in dispute.

<p>Appeal, No. 143, Oct. T., 1899, by plaintiff, from judgment of C. P. Venango Co., April T., 1898, No. 67, non obstante veredicto.</p> <p>Ejectment for land in Cornplanter township. Before Criswell, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged the jury as follows :</p> <p>We instruct you to render a verdict in favor of the plaintiff for the land described in the writ. If the court shall be of the opinion that under all the evidence the plaintiff is not entitled to recover, then judgment to be entered in favor of the defendants non obstante .veredicto. If, on the other hand, the court shall be of the opinion that the plaintiff is entitled to recover, then judgment to be entered on the verdict.</p> <p>The court subsequently entered judgment in favor of the defendants and against the plaintiff non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

<p> Railroads—Municipalities—Use of street—Equity. </p> <p>Where a railroad company occupies a street of a city, before a grade has been established, and the tracks prevent the proper drainage of the street, and interfere with the use of it by the public, and the railroad company offers to place the tracks in proper condition, conforming to the grade of the street when established, the city cannot compel the railroad company to grade the entire width of the street in advance of any action of its own.</p> <p> Railroads—Streets—Switches. </p> <p>A railroad company will not be enjoined from using a switch in a street, where it appears that the switch was only used for the purpose of moving cars to and from the company’s yard and of receiving and delivering freight to points not usually reachable by the main line, and that this use on the average did not exceed once in a month.</p>

<p> Criminal law—Murder—Evidence— Threats. </p> <p>On the trial of an indictment against a husband for the murder of his wife, where it appears that shortly before the murder the prisoner had been arrested at the instance of his wife, and at the hearing before a magistrate he had threatened that he “ would get even with her as soon as he got out,” the magistrate’s docket is admissible in evidence to show the date and nature of the proceedings, although it contains no record of the threats made by the prisoner.</p> <p> Criminal law—Insanity—Partial insanity—Husband and wife. </p> <p>On the trial of an indictment for wife murder, where the prisoner sets up the defense of partial insanity, limited to his marital troubles, a police officer who had no personal acquaintance with the prisoner, but on several occasions had seen his actions towards his wife, is competent to testify that he had noticed no indication of insanity, but from what he had seen believed the prisoner was sane.</p>

<p> Murder—Homicide committed in the perpetration of a robbery—■Evidence. </p> <p>On a trial for murder, evidence tliat the prisoner was seen on the night of the murder in the neighborhood of the deceased’s residence; that on the same night he was in possession of property which he admitted having taken from the dwelling of the deceased; and that after his arrest, he confessed the crime, is ample to show that the crime was committed in the perpetration of robbery.</p> <p> Criminal law—Murder—Confessions—Order of evidence. </p> <p>On the trial of an indictment for murder, where the commonwealth offers to prove a confession made by the prisoner to the officer who arrested him, the prisoner has no right to demand that he shall be first heard to testify that the confession was involuntary, before the officer is permitted to testify.</p> <p>In Pennsylvania the prisoner has the right to examine fully the witness called by the commonwealth to establish the alleged confession ; if it then appears that it was not voluntary it should be rejected without being heard; if it appears to have been voluntary then it should be received; if after-wards there be testimony contradicting the witness, then it becomes a question for the jury. Per Dean, J.</p> <p> Criminal law—Murder—Robbery. </p> <p>Where a killing occurs in the perpetration of a robbery the statute fixes the degree of the crime, and it is immaterial whether or not it was to the interest of the prisoner to kill the victim he had robbed.</p>

<p>Appeal, No. 63, Oct. T., 1899, by plaintiff, from decree of C. P. No. 1, Allegheny Co., June T., 1895, No. 884, dismissing bill in equity.</p> <p>Bill in equity for an account. Before Collier and Slagle, JJ.</p> <p>The facts appear by the opinion of the court below, which was as follows:</p> <p>The evidence clearly shows that the defendant allowed the use of his name as Robb & Fitzsimmons on their office building; that the name of Robb & Fitzsimmons was on letter heads used by both Mr. Robb and Mr. Fitzsimmons; that Mr. Robb frequently said Mr. Fitzsimmons was his partner; and that the name of Robb & Fitzsimmons was entered in suits of record in the various courts. This evidence would make them general partners as to the public dealing with them, as such. But the question for our determination is, as between themselves, was there a general partnership in the law business, that is, was there a partnership in which each of the parties was to participate mutually and equally in the fees and professional rewards and emoluments earned by them or either of them during the continuation of said partnership ? Or was the arrangement the one set up in defendant’s answer, viz: “ Mr. Fitzsimmons was to have the entire civil business, its fees and emoluments, and Mr. Robb the criminal business.” To determine this we find the following facts:</p> <p>1. A partnership of some kind was formed in April, 1877, for the practice of law, which was continued ■ without any settlement or accounting until December 15, 1893, when it was dissolved, the partnership having continued for a period of about sixteen years and eight months.</p> <p>2. During the first six years of the partnership Mr. Robb was district attorney of Allegheny county, and was receiving the regular salary attached to that office.</p> <p>3. During this period, as well as during the entire period and duration of the partnership, Mr. Fitzsimmons attended to the civil business, received and retained the fees therefor, except in a few special instances, in which both Mr. Robb and Mr. Fitzsimmons were concerned, in which cases the fees were divided as received, and all such cases have been settled. During the entire existence of the partnership Mr. Robb attended to the criminal business, received and retained the fees therefor as did Mr. Fitzsimmons as to the civil business.</p> <p>4. -No regular or intelligible partnership books were kept. Mr. Robb kept no books, and the books kept by Mr. Fitzsimmons contained no account whatever of the fees received by Mr. Robb from the criminal business, nor do they show any intelligible account of the fees received and retained by Mr. Fitzsimmons from the civil business attended to by him; indeed it would be impossible for Mr. Fitzsimmons, from the books and data in bis possession, to determine the amount of fees received and retained by him.</p> <p>■ 5. Although the partnership continued for sixteen years and eight months, no statement or settlement was made between the parties, nor any suggestion by Mr. Fitzsimmons of indebtedness from one to the other, earlier than February, 1893, and no direct demand by him until December 15, 1893, the day the partnership was dissolved.</p> <p>6. From the foregoing facts and the corroborating testimony of Mr. Robb, Jr., and Mr. McKenna, we find that there was not a general partnership existing between the parties, but that the arrangement was as set up by the defendant, viz: that Mr. Fitzsimmons was to take charge of all the civil business and was to receive and retain to his own use the fees and emoluments thereof; and that Mr. Robb was to take charge of all the criminal business, that is, all business not included in the term civil business, and to receive and retain to his own use all the fees and emoluments derived therefrom.</p> <p>CONCLUSIONS ON LAW.</p> <p>Having found that there was no general partnership, as between themselves, existing between the plaintiff and defendant, but that the arrangement was that Mr. Fitzsimmons should receive and retain the fees from the civil business and Mr. Robb the fees from the criminal business, and that each has received and retained the fees according to the arrangement, there is nothing to account for and the bill must be dismissed.</p> <p>Bill dismissed at the cost of plaintiff.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 73, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1896, No. 861, on verdict for plaintiff. Assumpsit for royalties on a patent.

<p> Tax lien—Taxation—Sheriffs sale. </p> <p>An action of ejectment by the purchasers of land at a tax sale cannot be sustained where the evidence shows that the taxes upon which the sheriff’s sale was had were assessed against a person who was not shown to have ever had any interest in or title to the land whatever.</p>

Appeal, No. 127, Oct. T., 1899, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1898, No. 723, on bill in equity. Bill in equity for a reconveyance. The facts appear by the opinion of Shaeer, J., which was as follows: The bill herein is by the husband against the wife to set aside a conveyance of real estate made by him to her, as made without consideration and while the plaintiff was in such mental condition as not to be competent to make a deed.

Appeal, No. 126, Oct. T., 1899, by plaintiff, from order of O. P. No. 2, Allegheny Co., April T., 1897, No. 830, refusing to take off nonsuit. Trespass for injuries to a house. The facts appear by the opinion of White, P. J., on motion for nonsuit, which was as follows: The plaintiff owns a lot in Bellevue, fronting on Lincoln avenue, and in 1881-1882 built a brick house on it which was not entirely finished at that time, there being further work done in 1890.

Appeal, No. 82, Oct. T., 1899, by-defendant, from judgment of C. P. No. 1, Allegheny Co., J une T., 1897, No. 454, on verdict for plaintiff. Appeal from judgment of justice of the peace in proceedings by landlord to dispossess a tenant. The rulings on questions of evidence related entirely to the amount of defendant’s damages, and became unimportant when the jury impliedly found that the lease had expired.

Appeals, Nos. 139 and 140, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1899, No. 131, on verdict for plaintiffs. Trespass to recover damages for personal injuries.

Appeal, No. 137, Oct. T., 1899, by plaintiff, from judgment of O. P. No. 3, Allegheny County, Aug. T., 1897, No. 490, on verdict for defendant. Trespass for personal injuries. Before Kennedy, P. J. The facts appear by the charge of the court below which was as follows: This action is for the recovery of damages which the plaintiff alleges have resulted to him through the negligence of the defendant.

<p> Criminal law—Murder—Indictment—Information. </p> <p>Where an indictment for murder has been regularly found by the grand jury upon examination of witnesses after information made before a magistrate, the court at the trial will not entertain a motion to quash the indictment because it. was not found after an information sworn to and subscribed before the committing magistrate.</p>

<p> Beneficial associations—Change of beneficiary—Fraud. </p> <p>A beneficial association was organized “ to create a fund for the benefit of its members during sickness or other disability, and in the ease of death to pay a stipulated sum to such person or persons as may be designated by each member; thus enabling him to guarantee his family against want.” A member of the association surrendered his certificate which was made payable to his wife, and took another payable to himself. He subsequently surrendered the second certificate and directed.another to be issued payable to another person described in his application as a ‘ ‘dependent friend.” This certificate was issued in consideration of the representations and declarations made to the association in the application. It appeared that the last beneficiary was not a dependent friend, but that he represented a creditor of the member, and that the creditor furnished the dues and assessments subsequently paid to the association. Held, in an issue between the beneficiary and the member’s wife, that the beneficiary was entitled to recover only the dues and assessments paid by him with legal interest.</p>

<p>Appeal, No. 215, Jan. T., 1898, by defendants, from judgment of Superior Court, Oct. T., 1897, No. 57, affirming judgment of C. P. No. 2, Phila. Co., Dec. T., 1896, No. 10, dismissing exceptions to judgment of a magistrate.</p> <p>Appeal from Superior Court.</p> <p>It appears from the report of the case in 7 Pa. Superior Ct. 408, that on September 30,1896, the plaintiff caused to be issued by magistrate Cunningham a summons under the act of March 21, .1772, returnable October 6, 1896, for the recovery of certain premises occupied by the defendants. On the return day defendants’ counsel moved to quash the proceeding, on the ground that one magistrate had no jurisdiction to try the cause. The magistrate overruled the motion, whereupon the defendants and their counsel withdrew. The magistrate then heard the case and gave judgment for the plaintiff, for possession and an award of 1120 damages, with costs. A writ of certiorari was issued and exceptions filed, (1) that the magistrate had no jurisdiction, the act of 1772 requiring two justices; (2) that the summons was made returnable more than four days after its issue.</p> <p>The court below overruled both exceptions and affirmed the judgment of the magistrate in an opinion by Wiltbank, J., as follows:</p> <p>This was a proceeding by a landlord against his tenant for possession under the act of assembly of March 21, 1772, and the case was tried before one magistrate and a jury, under section 12 of the Act of Assembly of February 5, 1875, P. L. 56. Several questions were presented at the argument as incidental to the inquiry, but only one of them was treated as important, and to that mainly shall we turn our attention. We are asked to declare a clause of section 12 of the act of assembly of 1875 invalid as violative of three clauses of the constitution, the 6 th and 7th sections of article 8 relating to legislation, and the 12th section of article 5 relating to the judiciary. The 6th section of article 3 we shall take up alone, and after we shall have considered the other two above referred to, and these two we shall now discuss together, as connected in significance in reaching our judgment.</p> <p>The 7th section of article 3 of the constitution prescribes that “ the general assembly shall not pass any local or special law .... regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before any courts, aldermen, justices of the peace .... or other tribunals .... regulating the fees or extending the powers and duties of aldermen, justices of the peace, magistrates and constables.”</p> <p>It is claimed that the act of 1875 violates several of these clauses of prescription, in its command that “where by law two aldermen are now required to hear and determine any matter brought before them, the same jurisdiction shall be exercised by one magistrate,” and that the violation has been wrought by the change to one magistrate from two.</p> <p>The powers of magistrates at the time of the adoption of the constitution were created by that instrument by tbe 12th section of the 5th article, relating to the judiciary: “ In Philadelphia there shall be established for each thirty thousand inhabitants, one court, not of record, of police and civil causes, with jurisdiction not exceeding one hundred dollars; such courts shall be held by magistrates, whose term of office shall be five years .... and who shall exercise such jurisdiction, civil and criminal, except as herein provided, as is now exercised by aldermen, subject to such changes, not involving an increase of civil jurisdiction, or conferring political duties, as may be made by law.”</p> <p>Courts thus directed to be established were established by the Act of Assembly of May 25,1874, P. L. 224, and they became at once subject to legislative changes so far as these were within the power of the legislature, in view of the restrictions imposed upon that body by the three clauses cited, that is to say, so far as they did not increase the civil jurisdiction, or regulate the practice by statute of local application only, or extend the powers and duties of magistrates.</p> <p>Can it be adjudged that a change making a reduction in the number of members of a magistrate’s court is an increase of its civil jurisdiction? It is argued to us in behalf of the defendant against whom was given judgment in this case, that it can, and that the enlargement is worked in the power left in the remaining member who, standing alone, and because he is deprived of a colleague, must do what before was the function of two. This is, we think, to miss the accurate conception of a court and its jurisdiction. A court is an organization for the administration of justice, and its “ jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them: ” State of Rhode Island v. State of Massachusetts, 12 Peters, 718. Such franchise to hear and determine, to adjudicate and exercise judicial power, vested in a judicial organization is not affected by changes in the membership of that body; to contend otherwise would be to confuse the authority of an individual or of the individuals making up the judicial body with the scope of the powers of that body itself as a part of one of the co-ordinate departments of sovereignty. In a court of competent creation nothing more than two judges could do can be done because one only acts. If the proposition urged for the defendant be sound, it may be asked, Why then shall not its converse be admitted?—that an increase in the membership of a court is a curtailment of its jurisdiction, the division of duty narrowing the scope of the judgment. In truth, the membership of a tribunal is not an incident of jurisdiction of all, the number of judges having no more relation to the reach of its powers than the number of its clerks or minor officials ; all of them are but ministers of a court, of differing degree of usefulness and dignity, of course, and only one class, the judges being, without exception, essential to its vigor; on the death of one judge the jurisdiction is not affected pro tanto because of a vacancy, nor on the absence of one; nor is the jurisdiction increased in those who remain; nor would the death of all destroy the court; its operation would be suspended until its machinery was duly again made complete. The jurisdiction would not have to be recreated with the appointment of each new judicial officer or of the entire body of judges, but would remain as already established, only awaiting the qualification of the persons through whom the court speaks. It was clearly the view of the legislature in enacting the statute of 1875, that the jurisdiction remained unaffected, as the citation from the act shows; where two aldermen are now required to hear and determine any matter, “ the same jurisdiction shall be exercised by one magistrate.” We have given attention to the argument and the briefs on this question, but we think that the point is not open to doubt.</p> <p>But it is further urged that the clause of the act of 1875 violates the constitution in regulating, by a local law, the practice before a court, and that, also, it extends the powers and duties of magistrates, contrary to the admitted spirit of that instrument favoring a uniform system of judicature and judicial action throughout the state. That the act of assembly is what is known to us as a local law may not be disputed, but if this were all that was said in this connection, the answer to the objection would be clear that the constitution created the local magistracy, and contemplated legislative power, first to establish and then -to change it in expressly stating the limitations of the exercise of that power. Nor do we see that the practice of a court is affected by legislation merely prescribing the number of.its members; that the powers of a magistrate are not extended and his duties broadened by the absence of a colleague would seem to follow from what we have already said. That the defendant in this case has been deprived of the “substantial right to have two magistrates,” as is urged in its behalf, is possible ; but if such a right ever existed for it, and if the act of assembly takes it away, the 'consideration has no weight against legislation, which is constitutional.</p> <p>It remains to consider the application of the 6th section of article 3 of the constitution, made by the defendant. That section provides in substance that no law shall be amended by reference to its title only, but so much as is amended shall be re-enacted and published at length, and it is here contended that the act of 1875, in the particular that it changed the members of the court from two magistrates to one, was in amendment of the act of March 21,1772, and that therefore the parts of the latter reached by the amendment should have been reenacted and published. We do not concur in this view. This court said of this section of the 3d article of the constitution in Donohugh v. Roberts, 11 W. N. C. 186, that “ the intention of the constitution is that when the provisions of a former law are to be incorporated with a subsequent statute, they or the law containing them shall be re-enacted and published at length.” But the act of 1875 manifests no legislative contemplation of the act of 1772, or design to incorporate its provisions; it is an act in certain respects inconsistent with earlier legislation, and in certain particulars, therefore, earlier legislation must give way to it. There is no mandate of the constitution that where legislation affects one way or another, legislation that has gone before, in every instance every statute thus in part or in whole affected must be referred to by title and be quoted at more or less length, as the case may require, in the latest enactment. There are the cases in which this must be done, of revivor, amendment, extension of provisions ; but these are a few only of many cases of enactments modifying what has gone before, and the act of 1875 is of a larger number.</p> <p>Exceptions dismissed and judgment affirmed.</p> <p>The Superior Court affirmed the judgment of the lower court.</p> <p>Error assigned was tbe judgment of the court.</p>

<p> Evidence—Appeals—Harmless error—Pleading. </p> <p>The rejection of evidence not relevant to the defense presented by the pleading's furnishes no ground for reversing a judgment.</p> <p> Evidence—Parol evidence to vary written instrument—Contract—Ground rent. </p> <p>In an action to recover arrears of ground rent, it appeared that a written contract which preceded the ground-rent deed provided that plaintiff, upon the demand of defendant, should dedicate to the city the whole bed of an adjoining street. Defendant offered to show that at the time of the execution of the contract, and as an inducement to its execution, plaintiff stated that he had a contract with adjoining owners by which they were to open the street referred to in the contract at any time upon his demand, and that he would procure them to open it at any time on defendant’s request that he should do so. There was no allegation of fraud, accident or mistake, nor did the offer contain any denial of the existence of an agreement with the adjoining owners, nor any assertion by defendant of a refusal by plaintiff to demand performance of their agreement by the adjoining owners. Held, that the court committed no error in rejecting the offer of evidence.</p> <p> Ground rent—Set-off—Unliquidated damages. </p> <p>In an action to recover arrears ol ground rent the defendant will not be permitted to set off unliquidated damages arising from the breach of an alleged agreement by the plaintiff to open, or cause to be opened, a street adjoining the land conveyed by the ground-rent deed.</p>

<p>Appeal, No. 190, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1896, No. 1112, on verdict for defendants.</p> <p>Trespass for personal injuries. Before Arnold, P. J.</p> <p>At the trial it appeared that the plaintiff, a boy sixteen years old, while riding a bicycle on June 19, 1896, was injured by a collision with one of defendants’ wagons. The evidence relating to the accident is fully stated in the opinion of the Supreme Court.</p> <p>The court charged as follows:</p> <p>This is a case for binding instructions. In my judgment this is a case for a verdict for the defendants. There is no evidence of negligence on the part of the defendants. It is the old law of the road over again. It is not any kind of bicycle law; it is the law of the road. It is the duty of the driver of a light vehicle to turn out of the way of a heavier and more unwieldy vehicle, and to keep his bicycle under such control that he can turn out. If the collision is accidental, resulting from his inability to manage or control it, he is without remedy. The case is a case of accident only, and he cannot recover damages from the other party.</p> <p>Yerdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was the charge of the court, quoting it.</p>

Appeal, No. 145, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Pbila. Co., June T., 1898, No. 869, on verdict for defendant. Trespass to recover damages for personal injuries. At the trial it appeared that on May 18, 1896, at about half past nine o’clock in the morning, the plaintiff, a young man about twenty years old, was seriously injured in a collision with one of defendant’s cars.

<p> Deed—Parent and child—Evidence—Burden of proof—Fraud. </p> <p>Business dealings between parents and children and other near relatives are not per se fraudulent; they must be treated just as are the transactions between ordinary debtors and creditors, and where the bona lides of their transactions Is attacked, the fraud must be clearly proved.</p> <p>In a proceeding which involved the validity of a deed of all of a son’s property to his mother, the consideration of which was the payment of a large annual income to himself, it appeared that the son disliked his relatives, and was averse to having the property go to them ; that he was dissipated and his habits were those of a spendthrift; that he frequented Lhe races, owned a stud of horses and a yacht; that he had declared that he had been unsuccessful in every venture, and that he abhorred business and sought only pleasure; that his mother was a good business woman ; that she had paid large debts which he had improvidently contracted, and that she had saved his affairs ; and there was no evidence of overreaching or selfish grasping of the son’s property by her. Held, that the orphans’ court was not in error in sustaining the deed and awarding the son’s estate to his mother.</p> <p> Deed—Husband and wife—Fraud upon wife. </p> <p>Where a son, for a proper consideration and in pursuance of a proper motive, conveys all his estate to his mother, and some months afterwards becomes engaged to be married, and subsequently, but before his marriage, executes another deed to his mother which differs in no substantial particulars from the first deed, the second deed deprives the wife of no rights and defrauds her of no marital prospects.</p>

<p>Appeal, No. 240, Jan. T., 1899, by-defendant, from judgment of O. & T. Mifflin Co., Nov. T., 1898, No. 2, on guilty of murder in the first degree.</p> <p>Indictment for murder. Before Bailey, P. J.</p> <p>At the trial it appeared that on August 18, 1898, Joseph Morrison, the prisoner, stabbed and killed Harry Dougherty at the Brindle hotel in Belleville, Mifflin county. The weapon used was a large cattle knife, having a blade about four inches long. The testimony of spectators who saw the killing is stated, at length in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[Excusable homicide is a killing by accident or in defense of one’s self where there is no possible escape or protection except in taking the assailant’s life, or where there is reasonable apprehension of loss of life or great bodily harm so imminent at the time of the assault as to present to the prisoner no alternative of escaping the consequences except by slaying the assailant. Where a party assaulted has reasonable grounds for belief that he is in clanger of loss of life or great bodily harm, and does so believe, and lias no probable means of escape, he is justified in acting upon appearances as they present themselves to him at the time, and killing his assailant, and this though it should turn. out afterwards he was mistaken. But it must appear that the nature of the assault was such as to excite the fears of a reasonable man.] [6]</p> <p>Felonious homicide is the killing of a human creature without justification or excuse, and is divided into murder and manslaughter.</p> <p>Murder is defined to be, “ Where a person of sound memory and discretion unlawfully kills any reasonable creature in being and in the peace of the commonwealth, with malice aforethought, either expressed or implied.”</p> <p>At common law there were no degrees of murder, and there was but one punishment for the crime. More than one hundred years ago, as human civilization, regarding the infirmities of nature and prompted by the dictates of humanity, advanced, our commonwealth made a distinction between murders so far as the punishment of the offense is concerned. In 1794 and again in 1860 it enacted a law on that subject, as follows : “ All murder which shall be perpetrated by means of poison or by lying in wait or by any other kind of wilful', deliberate and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree.”</p> <p>Murder of the second degree is where there is a wilful and malicious attempt to do bodily harm and death results unintentionally. Manslaughter is defined to be “The unlawful killing of another without malice, either expressed or implied.” It is also of two kinds, voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter is the killing of another upon a sudden heat of passion or quarrel, where there is sufficient cause or provocation and a state of passion resulting therefrom, without time to cool and reason to interpose, which places the slayer beyond the power of reason and impels him to the deed. Involuntary manslaughter consists of the killing of another by accident, whilst doing an unlawful act, not amounting to a felony, or doing a lawful act, in an unlawful manner.</p> <p>The killing of a human being is presumed to be murder, but not murder of the first degree, but of the second degree. When the commonwealth alleges that the offense is murder of the first degree the burden is upon it to show by evidence that admits of no reasonable doubt that the killing was wilful, deliberate and premeditated, with malice, or that it was perpetrated by poison or lying in wait, or in the commission or attempt to commit arson, rape, robbery or burglary. [To reduce the offense below murder of the second degree, the burden is upon the defendant.] [8]</p> <p>You will understand us, gentlemen, that the presumption which arises from the act of killing is that it was murder of the second degree; the burden is upon the commonwealth to raise it to a higher degree, and upon the defendant to reduce the offense to a lower degree, than murder of the second degree. To find the prisoner guilty of murder of either the first or second degrees you must be satisfied from the evidence, beyond a reasonable doubt, that the killing was without justification or sufficient excuse, and that it was wilful and malicious. Malice may be either expressed or implied. Expressed malice may be established by declarations of the prisoner of an intent to kill or to commit great bodily harm. Malice may be implied from the use of a deadly weapon directed against a vital part of the body. Malice and a design to kill may be presumed from the savage nature of the attack and the weapon employed.</p> <p>With these general principles of law to guide you in your deliberations you will consider all the evidence produced by the commonwealth hi the case, as well as that on behalf of the prisoner. If in our presentation of the case to you we fail to specially refer to any evidence in the ease you must not for that reason regard, it as immaterial, but you must consider all the evidence on both sides before making up your verdict the same as if we particularly referred to it. You will endeavor to remember all of it and give to every part of it all the weight you think it is entitled to. As we have said before you must in every step of your deliberations bear constantly in mind the presumption of the prisoner’s innocence of the charge against him in this indictment.</p> <p>The commonwealth does not allege in this case that the killing of Harry Dougherty was by poison or in the perpetration of or attempt to perpetrate any of the felonies in the act of assembly defining the degree of murder to which we have already called your attention, but we understand that it does allege that the killing was wilful, deliberate and premeditated, with malice aforethought, and without any justification or excuse on the part of the prisoner.</p> <p>[It is alleged by the commonwealth and evidence has been adduced in your hearing, that Joseph Morrison, the prisoner at the bar, did, on the afternoon of August 18, 1898, in the town of Belleville, this county, deliberately, wilfully and premeditately, without sufficient excuse or justification, kill Harry Dougherty.] [9] ....</p> <p>The law fixes no exact period of time that may be called “ cooling time.” The human mind acts differently in different individuals. Passion subsides in some men’s minds more quickly than in others. Some form a deliberate purpose sooner than others. Therefore the law leaves it to the jury to determine that question under the facts and circumstances of each case as it may arise. [If for any period of time, no matter how short, there was on the part of the prisoner a conscious design and determination to kill, the killing is murder and not manslaughter, notwithstanding the previous conduct of the deceased.] [5] The evidence, as I recollect it, is that the time was from one and one half minutes to three or four minutes. The prisoner estimated the time at about one minute.</p> <p>The commonwealth alleges that after the prisoner was knocked down he deliberately prepared a knife with an evil design; that he was evidently anticipating another combat and had prepared himself for it; that he approached the deceased with it in his hand, concealed behind his back, if it was there concealed, a distance of from ten to fifteen feet, when the deceased was not attempting to do him any harm. The cutting of the deceased and [the deliberate wiping the blood off the knife upon his trousers show a coolness of purpose that rebuts the contention of the prisoner that the killing was in the heat of passion.] [10]</p> <p>[The prisoner admits the preparation of the knife] [11] and that he stabbed the deceased with it, but claims that his passion had not subsided and that he had no intention of killing the deceased. He also denies that he concealed the knife behind his back, as alleged by the commonwealth.</p> <p>Verdict of guilty of murder of the first degree.</p> <p>On a motion for a new trial the court said in j>art:</p> <p>The twelfth reason assigned for a new trial was probably suggested by improper punctuation by the stenographer in transcribing the last paragraph of the charge. The punctuation of that paragraph does not permit it to express the thought we had in mind when the charge was delivered. The whole paragraph was delivered as one sentence, commencing with the words, “ The commonwealth alleges.” The punctuation divides it into three sentences. No period should have been used until at the end of the paragraph. Where the two intervening periods are used semicolons should have been. As punctuated the middle one of the three sentences is incomplete. The purpose of the whole paragraph was a statement to the jury of what “ the commonwealth alleges ” rebutted the contention of the prisoner that the killing was in the heat of passion. The punctuation of it might indicate that we stated to the jury as a conclusion of law that “ the cutting of the deceased and the deliberate wiping the blood off the knife upon his trousers ” did rebut the contention of the prisoner that the killing was in the heat of passion, which is wholly inconsistent with other parts of the charge. By substituting semicolons in place of the periods, the paragraph will appear just as it was delivered, in but one sentence. The words used were the words of the court. The punctuation of them was the act of the typewriter, and could not possibly have done the defendant’s cause any harm. The fact that the prisoner after stabbing the deceased wiped the blood off the knife upon Ills trousers appeared in the testimony of witness.es on both sides, and was not contradicted or denied. . . .</p> <p>During the trial three or four of the jurors became slightly indisposed, and desired the attendance of a physician. A reputable physician was sent for, who examined them either in open court in the presence of the prisoner, or in an adjoining room in the presence of a constable who had them in charge. The trial, of course, did not proceed during the visits of the physician, and was several times interrupted by the continued indisposition of one of the jurors. The illness of the others promptly yielded to treatment. The trial only proceeded when we were satisfied by consultation with the physician that the jurors were comfortable and capable of giving their attention wholly to the trial. We do not think that the temporary and slight indisposition of the jurors, and the ministration to them of the physician during the trial, prejudiced the defendant’s cause in the least. No physician or other person was with the jury during any portion of their deliberations after they retired for deliberation.</p> <p>The jury having found the facts to be as the commonwealth contended, they were justified in rendering the verdict they did.</p> <p>We have carefully examined the whole case in as favorable a light to the prisoner as we possibly could and have come to the conclusion that the prisoner had a fair trial and that the evidence justified the verdict.. He was ably defended by eminent counsel. The integrity of the jury is not impeached. There is no allegation of after-discovered evidence that would likelyproduce a different verdict in case a new trial was granted. Therefore we cannot sustain either of these motions.</p> <p>And now, May 22, 1899, the motions in arrest of judgment and for a new trial are both overruled.</p> <p>On motion of the district attorney sentence of death was passed upon the defendant.</p> <p>The defendant appealed.</p> <p>Errors assigned among others were (1) that the ingredients necessary to constitute murder of the first degree do not exist in this case; (2-4) that the charge was inadequate; (5, 6, 8-11) above instructions, quoting them; (12) the judgment in this case should be reversed because the commonwealth did not offer in evidence the trousers worn by the prisoner at the time of the cutting, the same then and ever since having been in the possession of the commonwealth, as the said trousers would have rebutted the testimony that the prisoner, after the cutting, wiped the blood from the knife on his trousers; (13) the judgment should be reversed because of the sickness of several jurors so that they were unable to give the trial that due consideration, deliberation and care to which it was entitled; (14) the judgment should he reversed and sentence set aside because the prisoner was sentenced as of No. 1, November term, 1898, whereas the number of the case is No. 2, November term, 1898.</p>

Appeal, No. 434, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1896, No. 1249, on verdict for defendants. Trespass to recover damages for death of plaintiff’s husband. Before Bré&y, J. At the trial it appeared that the deceased died on July 17, 1896, from injuries caused by the fall of a scaffolding of a building operation at Sixteenth and Jackson streets in the city of Philadelphia.

<p>Appeal, No. 30, Oct. T., 1899, by plaintiff, from order of O. P. Beaver Co., Sept. T., 1898, No. 66, discharging rule to appoint an auditor.</p> <p>Rule to appoint an auditor to distribute fund raised by a sheriff’s sale.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule.</p>

<p>Appeal, No. 99, Oct. T., 1899, by defendant, from judgment of C. P. Beaver Co., Dee. T., 1897, No. 176, on verdict for plaintiff.</p> <p>Trespass to recover damages for death of plaintiff’s wife. Before Wilson, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The trial court charged in part as follows:</p> <p>It appears that on the night in question the office of the company in Beaver Falls was open, and that W. C. Donaldson who testified on the part of the plaintiff and also on the part of the defendant, at about 9 o’clock went to the store of F. W. Walker in New Brighton and telephoned to the office in Beaver Falls; that he was answered by some one in the office, who informed him that Mr. Sturgeon who had been in the office would return in about twenty minutes; that before that time expired, or Mr. Sturgeon not having returned to the office, he was called upon to turn off the gas in another house, and Mr. Walker telephoned to Mr. Sturgeon, or, it appears from the testimony of Mr. Donaldson, that he notified whoever it was in the office of the defendant company that there was something terribly wrong with the pressure in the borough of New Brighton. Mr. Walker testified that the difficulty experienced by him with the gas was the excessive pressure in the Welsbach burners; that the gas was burning out at the top; and what the exact language which he used in the conversation with Mr. Sturgeon was as to the condition of the gas at the time, the court does not recall, but you will remember.</p> <p>While telephoning at or about 9 o’clock, or while Mr. Sturgeon was still at the telephone, Mr. Long came in from the field. Then it was upon receiving the information, and some discrepancy, perhaps, as to the exact language used and the character of the information received exists, but upon information received that there was something wrong at New Brighton in the low-pressure lines, he, according to his testimony, immediately went to New Brighton, to the regulators provided for the purpose of reducing the pressure from the high pressure to the low pressure mains for the purpose of examining the low pressure mains.</p> <p>It appears from the defense that upon the day in question one Charles Miller, the superintendent of the Citizens’ Natural Gas Company, opened a box located about ten feet from the curb on Thirteenth street and Fourth avenue, and about twenty feet from the regulator house of the defendant company, and there turned a valve or gate which shut off a pipe or by-pass connecting the high pressure main with the low pressure main of the defendant company, aside from the regulator at that point. This has been designated, by the testimony in this case as a by-pass, its purposes and uses having been described by witnesses both for the plaintiff and for the defendant. . . .</p> <p>[It appears, and from the uncontradicted evidence, that the gas which caused the excessive pressure in the low pressure mains came through the by-pass, and if it had not been for the act or interference of Charles Miller, the superintendent of the Citizens’ Natural Gas Company, with the valve upon this bypass, we are safe in saying in this case that the accident would not have occurred. So far as the testimony concerning the turning in of the gas, and relying upon the regulators to reduce the gas from the high pressure to the low pressure mains, it would certainly be warranted, and would not be, at least in the light of the case, held as the proximate or controlling cause of the accident ; but in using this term we do not mean to say that the questions in this case are controlled by the principle of proximate or controlling cause.] [9] ....</p> <p>Another position taken by the plaintiff, if you should in the determination of any one of these questions find that there was negligence, and that negligence contributed to this injury, you need not proceed further. If you should determine that in this there was no negligence, and that there was the exercise of ordinary care and prudence under the circumstances then you should pass to the consideration of another question and.that is whether or not after receiving notice, at 9 o’clock, or thereabouts—the differences as to the time you will remember—■ whether or not ordinary or due diligence was exercised by the employees of the defendant company in trying to reduce the pressure of gas. As to this testimony, it is conflicting. Ve have a state of facts practically agreed upon by all the parties, except, perhaps, as to the wording of the notice received and the effect it would have upon the parties, upon the one who had received it. On that question expert testimony has been introduced, and there is a decided conflict at to the prudent and reasonable course for one to have pursued upon the receipt of the notice.</p> <p>[It appears from the evidence, and it has been referred to fully, that the purpose of the regulators is to reduce the gas from the high pressure to the low pressure system; that in connection with these regulators are gates or valves, the purpose of which is to shut off the gas entirely from the high pressure to the low pressure system. The testimony of the plaintiff is that upon the receipt of this notice, some of the witnesses for the plaintiff say that the defendant through its employees should have gone immediately to the gate at the freight house, it being the last, or practically the last place from which gas was turned on, at least the last from which gas was received into the town, or had been turned on to the town, and shut off the supply at once. Other witnesses testify that the proper course to follow was to do as the defendant did in this case, that is, go immediately to the regulators. What was the natural thing, or prudent thing, for one to do in the light of all the circumstances in this case ? The testimony both for the plaintiff and for the defendant is that the proper thing to have done was to have shut off the gas at the nearest point to the danger. Now, which would be the most effective, nearest point, would be a question in this case for your consideration.] [10]</p> <p>Defendant’s sixth point and the answer thereto among others - were as follows:</p> <p>6. Upon the undisputed facts in this case the question of proximate cause is one to be determined by the court, and upon these facts the act of Miller was an independent, unrelated cause of this injury, without which act this injury could not have happened ; it was therefore the first or proximate cause in the series, the efficient and responsible cause, and the verdict should be for the defendant. Answer: This point is refused. [18]</p> <p>Verdict and judgment for plaintiff for $15,000. Defendant appealed.</p> <p>Error assigned among others was above instruction.</p>

<p>Appeal, No. 152, Oct. T., 1899, by defendant, from decree of C. P. Beaver County, Sept. T., 1896, No. 5, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The court in an opinion by Wilson, P. J., entered a final decree directing the defendant company to remove the improvements which it had made on the land in dispute, and enjoining it from interfering with the plaintiff’s possession of the same.</p> <p>Error assigned among others was the decree of the court.</p>

Appeal, No. 131, Oct. T., 1899, by plaintiff, from decree of C. P. Greene Cor, No. 18, in equity. Bill in equity for conveyance of land. The substance of the bill and the grounds for demurrer are stated in the opinion of the Supreme Court. The court in an opinion by Craweord, P. J., sustained the demurrer and dismissed the bill. Plaintiff appealed. Error assigned was the decree of the court.

<p>Appeal, No. 112, Oct. T., 1899, by plaintiffs, from judgment of C. P. Greene Co., Jan. T., 1896, No. 275, on verdict for defendant.</p> <p>Ejectment for lot of ground in Waynesburg. Before Craweord, P. J.</p> <p>At the trial it appeared that plaintiffs claimed title under the will of Robert Whitehill, as children of Elizabeth Yeater.</p> <p>The material portion of the will was as follows:</p> <p>“ 8th. To Elizabeth, the daughter of Kitty Yeater, I give the house and lot where John Irons now lives on High street, the house and lot formerly the old courthouse, and the house and lot where John Cunningham now lives on Greene street, to her and such heirs of her body or children such as she shall leave living at the time of her death.”</p> <p>Defendant claimed under a deed executed in 1848 by Elizabeth Yeater to W. W. Sayers.</p> <p>Plaintiffs averred that Elizabeth Yeater took only a life estate under the will of Robert Whitehill, and also that Elizabeth Yeater had been non compos mentis from infancy. Elizabeth Yeater died in 1892.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>